In reaching its conclusion, the Court obliterated a fundamental distinction between a penalty and a tax. Congress has the power to lay and collect taxes, and therefore, the Court reasons, it can apply a tax for any reason, even those otherwise outside the confines of the Constitution.
In this case, the Court ruled that Congress could not pass a law requiring citizens to purchase a government-approved health plan under the commerce clause, but it can enforce exactly the same requirement through a tax. Government cannot fine you for disobeying, but it can tax you for disobeying.
If the government fines you $250 for running a red light, or it taxes you $250 for running a red light, the effect is the same. What’s the difference? There are two critical differences.
First, as a fine – as a penalty – the burden of proof is on the government to prove that you ran that red light. As a tax, the burden of proof is on you to prove that you did not run it. Anyone who has ever undergone an IRS audit knows exactly what I mean. This decision fundamentally alters the most cherished principle of our justice system: the presumption of innocence.
There is a second, even more chilling difference between a penalty and a tax. Under our Constitution, no penalty can be assessed without due process – you cannot be punished until you have had your day in court. But to challenge a tax, you must pay first pay that tax before you can seek redress through the court. You are punished first, and then tried.
This is the madness of Lewis Carroll’s Red Queen brought to life: “Sentence first – verdict afterwards.”
Americans may now be coerced, under threat of seizure of their property, to take any action the federal government decrees without any Constitutional constraint, enforceable in a manner that denies both presumption of innocence and due process of law.
By this reasoning, we can now tax speech we find offensive, tax people who chose not to go to church – or people who do; tax people who own guns – or people who don’t. As long as we call it a tax, there are no limits to the power of the Federal government under the decision of this court.
I believe this decision will go down in history as one of the most deplorable ever rendered, taking a place of infamy next to Dred Scott.
If the Court has failed to defend our Constitution, what appeal is left?
There is one. The Constitution does not belong to the Federal government. Its ownership is made clear in its first three words: “We, The People”. As Ronald Reagan said, “The Constitution is not the government’s document telling the people what we can and cannot do. The Constitution is the people’s document, telling our government those things we will allow it to do.”
Thus, the Supreme Court is not the highest court in the land. That position is reserved to the rightful owners of the Constitution, the sovereign American people, through the votes they cast every two years.
The infamous Alien and Sedition Acts were never struck down by the Court – the American people did that in the election of 1800. The Supreme Court declared American slaves outside the protection of the Constitution when it struck down the Missouri Compromise – but the American people reversed that decision in the election of 1860.
Let us pray – while we still can – before that, too, is taxed -- that this infamous decision will be repudiated by what is actually and rightfully the highest court in the land -- the American people.
McClintock delivered these remarks on the House floor, July 10, 2012.