In the wake of Chief Justice John Roberts' division of the mandate baby, the Wall Street Journal editorial board
laments:
From now on, Congress can simply regulate interstate commerce by
imposing "taxes" whenever someone does or does not do something contrary
to its desires.
That's true! Also on target is the editorialists' complaint against Roberts' sleight-of-hand (which I
noted myself on Saturday):
[Roberts] also temporizes that "taxes that seek to influence conduct are nothing new."
True enough, but the punishments in the tax code for inactivity come
in the form of not being able to claim benefits that Congress in its
graces bestows. Such as: If you don't borrow to buy a home, you don't
get a mortgage interest deduction.
Congress has never passed a tax on a lack of gasoline or a tax on a
failure to buy gasoline, any more than Congress can regulate inactivity
under the Commerce Clause by telling people to buy gasoline or else pay a
penalty.
This reality-based analysis, however, serves a fantasy:
The reality is that Washington would love to regulate the ordinary
economic choices that used to be beyond its purview, and now it will be
able to abuse the ad hoc "tax" permit that the Chief Justice has given
it.
