Changing Stance, Administration Defends Insurance Mandate

[jg]

From http://www.nytimes.com/2010/07/18/healt ... ealth.html

Changing Stance, Administration Now Defends Insurance Mandate as a Tax
By ROBERT PEAR
Published: July 16, 2010
WASHINGTON — When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.
...
Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.
...

To me, being able to tax even that which could not be regulated does not equate to “even for purposes that would exceed its powers under other provisions” of the Constitution.

As of yet, I have not been able to find the source of the quote about using taxing power to exceed Constitutional limits to federal power in order to read it in context.

[Famspear]

From http://www.nytimes.com/2010/07/18/healt ... ealth.html

Changing Stance, Administration Now Defends Insurance Mandate as a Tax
By ROBERT PEAR
Published: July 16, 2010
WASHINGTON — When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.
...
Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.
...

To me, being able to tax even that which could not be regulated does not equate to “even for purposes that would exceed its powers under other provisions” of the Constitution.

As of yet, I have not been able to find the source of the quote about using taxing power to exceed Constitutional limits to federal power in order to read it in context.

I suspect the allusion is to the doctrine that although Congress cannot regulate for the "general welfare," Congress can tax for the "general welfare" (U.S. Constit., Art. I, sec. 8, clause 1). The textual reference to the power to tax for the "general welfare" in clause 1 is an independent source of Congressional power, quite apart from the Congressional power to regulate interstate commerce (clause 3), or the power to provide for uniform laws on bankruptcy (clause 4), etc., etc.

Is the tax in question in substance a "regulation" -- or is it simply taxing for the general welfare?

EDIT: From the Congressional Research Service:

....in United States v. Butler, the Court gave its unqualified endorsement to [Alexander] Hamilton's views on the taxing power. Wrote Justice Roberts for the Court:

Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase [in Art. I, sec. 8, clause 1, relating to the power to tax and spend for the general welfare]. [James] Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section [i.e., clauses 2 through 17]; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the numerated legislative fields [in clauses 2 through 17] committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause [clause 1] confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court had noticed the question, but has never found it necessary to decide which is the true construction. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it [i.e., in clause 1 of Sec. 8 of Art. I], and not in those [clauses 2 through 17] of Sec. 8 which bestow and define the legislative powers of the Congress.....

Congressional Research Service, Johnny H. Killian and George A. Costello, Co-Editors (bolding added; footnotes omitted).

EDIT 2: The citation for Butler is United States v. Butler, 297 U.S. 1 (1936).