BY LINDA BENTLEY | JULY 25, 2012
Is Obamacare tax an un-apportioned and unconstitutional tax?
‘The Constitution will not be defended unless the people defend it … The free people of America need to institutionalize citizen vigilance’
WASHINGTON – Bob Schultz (r) of the We The People Constitution Lobby (WTP) project, dedicated to organizing citizens to systematically hold every government official in all levels of government accountable, challenges the U.S. Supreme Court’s ruling that the individual mandate in the Affordable Care Act, otherwise known as Obamacare, is an indirect tax and not subject to apportionment.
Congress’ taxing power is spelled out in three sections of Article I of the Constitution.
Under Section 2, Clause 3, it states, “Representatives and direct taxes shall be apportioned among the several states which may be included within this Union …”
Section 8, Clause 1 states, “The Congress shall have power to lay and collect taxes, duties, imposts and excises. But all duties, imposts and excises shall be uniform throughout the United States.”
And, Section 9, Clause 4 states, “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”
Schultz stated, “Of all the mandates in the Constitution, there is only one that is repeated twice: direct taxes must be apportioned. It means exactly what it states.”
Through these three clauses, the people and the states grant Congress the authority to impose two types of taxes, direct and indirect, but only under strictly limited conditions.
Direct taxes, referred to as “Capitation and other direct taxes” are those which, if imposed by Congress, must be equally apportioned among the people according to the last census.
For example, Schultz stated, “If Congress decided to exact a certain amount of money by imposing a direct tax (a tax the people cannot legally avoid) and California has 13% of the Union’s representation based on population as ascertained by the census, then California must raise 13% of the total amount of the direct tax imposed by Congress.”
As for indirect taxes, referred to as “Duties, Imposts and Excises,” which, if imposed by Congress, must be uniform throughout the United States. For example, if Congress decided to exact money by imposing a Duty, Impost or Excise (a tax to be paid on the exportation, importation or purchase/consumption of a good), the amount of the tax must be the same no matter the point of importation, exportation or sale.
Schultz noted, “Not being ‘direct,’ apportioned and unavoidable, these ‘indirect’ taxes are uniform and, importantly, legally avoidable.”
In writing for the majority in the Obamacare decision, Chief Justice John Roberts admitted such, and stated direct taxes “must be apportioned among the states.”
However, Schultz noted, in order to avoid this constitutional restraint, Roberts falsely declared Obamacare's individual mandate is not a tax on the ownership of personal property and “is thus not a direct tax that must be apportioned among the several states.”
Calling Robert’s decision “erroneous,” Schultz said, “Most troubling is the fact that both the majority and the dissent refused to deal honestly with the issue of direct taxes.”
In upholding the individual mandate, Roberts wrote, “Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.”
WTP sharply disagrees with the logic of the court’s decision that Congress has the power under the tax clause to require people to buy a product or pay a tax for not purchasing the product, without apportioning the tax among the several states.
Where Roberts held the tax is “not a direct tax that must be apportioned,” he stated, “A tax on going without health insurance does not fall within any recognized category of direct tax.
It is not a capitation … The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several states.”
However, Roberts described how the tax, or “shared responsibility payment,” is a compulsory contribution to government revenue, levied by the government on workers’ income.
Schultz argues, “A worker’s income, the fruits of his labor, is his personal property, making the shared responsibility payment a tax on personal property and therefore one that must be apportioned among the states.”
According to Schultz, a worker’s labor and the fruits of his labor are his personal property, long held to be a natural right, and discussed John Locke’s Second Treatise on Government, in which Locke argued in support of individual property rights as “natural rights,” following the argument the fruits of one’s labor are one’s own because one worked for it.
Schultz stated, “That a worker’s labor is personal property falling within the zone of interests to be protected by the Constitution has been affirmed many times by the Supreme Court,” and quoting from an 1884 Supreme Court opinion, said, “The property which every man has is his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.”
Quoting from a 1915 Supreme Court opinion in Coppage v. Kansas, Schultz wrote, “The principle is fundamental and vital. Included in the right of personal liberty and the right of private property – partaking of the nature of each – is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense ...”
Roberts stated, “If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.”
However, Roberts went on to say, “Three considerations allay this concern.
“First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes.”
Schultz says, “Not so fast. In fact, We the People are protected from federal taxation so long as we abstain from engaging in importation, exportation and consumption of those goods taxed uniformly and from owning real and personal property taxed in proportion to representation based on population as ascertained by the census.”
In conclusion, Schultz said, “With this new tax against income, as with other direct, un-apportioned taxes, one of the greatest landmarks defining the boundary between the nation and the states of which it is composed disappears, and with it one of the bulwarks of private rights and private property.
“America is on a slippery slope rushing headlong into debt, dependency and decay.”
Schultz stated, “The Constitution is not a menu. The Constitution cannot defend itself. Everybody and everything has a lobby except the Constitution and the People. The Constitution will not be defended unless the people defend it … The free people of America need to institutionalize citizen vigilance.”
Visit www.givemeliberty.org to watch Schultz’s video, “What if the Government rejects the Constitution,” to join WTP, which is made up entirely of unpaid volunteers, and to make a donation.