Arguably the most severe problem facing the young nation under the Articles was that the national government had no power to tax individuals directly; indeed, it had no effective way of raising money at all. Instead of complying with these requests, states free rode off the contributions of sister states.
The consequence was that the national government was severely underfunded, which among other things gravely threatened national security.
The solution to the collective action failures of the Articles lay with the establishment of a more powerful and comprehensive unit of government—a national government with the authority to tax, raise and support a military, regulate interstate and international commerce, and act directly on individuals.
According to Hamilton, Congress possessed a robust power to tax and spend regardless of whether the tax or expenditure could plausibly be viewed as carrying out another enumerated power of Congress, such as regulating interstate commerce or raising and supporting a military.
The Supreme Court did not weigh in on this longstanding debate over the scope of the federal taxing and spending powers until , in United States v. Butler , when it sided with Hamilton. Ever since, the law has been that Congress can use the Taxing Clause without tying such use to another of its constitutional powers. It is clearly established that such power is limited by constitutional provisions protecting individual rights. For example, it would undoubtedly violate the Free Speech Clause if Congress taxed people just because they criticized the federal government.
More controversial is whether there are internal limits on the Taxing Clause, and whether they may be enforced by courts. Maryland , that redress for misuse of the taxing power lies with the political process, where unhappy citizens can vote politicians out of office. Drexel Furniture Co.
In more recent times, the Court sustained the constitutionality of required payments just because they raised at least some revenue.
Sonzinsky v. United States ; United States v. Kahriger In , in NFIB v. Sebelius the Health Care Case , the Court clarified much of the confusion. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. The Court reasoned that the required payment would likely discourage people from going without insurance without preventing them from doing so, which is why it was expected to raise several billion dollars in revenue each year.
The Taxing Clause solved perhaps the single greatest collective action failure of the states under the Articles of Confederation: the serial inability of the several states to adequately fund the national government in light of free riding by sister states. See, e. This failure caused serious financial problems for the young, vulnerable nation and raised grave national security concerns.
And so the Constitution confers upon Congress robust taxing authority. Mississippi ex rel. Knox Holmes, J. Moreover, without any enforceable limits on the Taxing Clause, Congress could readily circumvent even very modest limits on the scope of the Commerce Clause.
For example, the Supreme Court has held for more than two decades that the Commerce Clause empowers Congress to use penalties to regulate economic conduct that substantially affects interstate commerce, but not to regulate noneconomic conduct.
What prevents Congress from penalizing non-economic conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of the federal tax power. In NFIB v. Sebelius , the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act ACA imposes a penalty or a tax by requiring most individuals to either obtain health insurance or make a payment to the Internal Revenue Service.
Along with Robert Cooter, I have developed an effects theory of the federal tax power in order to distinguish between penalties and taxes. See Robert D. The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue.
HB 85, however, is unconstitutional under the United States and Missouri constitutions. The tension between the state and the federal government has been a constant throughout American history. The question of how power should be divided between the federal government and the states has been debated for over two centuries. The debate began at the Constitutional Convention in Philadelphia in between the Federalists and the anti-Federalists.
The first case before the Supreme Court was the landmark case of McCulloch v. Maryland, decided in In that case, the court considered the power of Congress to charter the Second Bank of the United States. The state of Maryland passed legislation to impose taxes on the bank, and the court determined that Congress had the power to incorporate the bank and the state did not have the power to tax it.
Opponents of the legislation argued that the power to establish the national bank was not specifically mentioned in the Constitution. At the time of the Framing it was assumed that the most powerful branch of government was the legislature. That is one of the reasons why Congress was made bicameral while the executive was unitary—so that legislative power and executive power could be effectively balanced.
Today, however, any notion that Congress is twice as powerful as the Presidency would be dismissed as fanciful. The Presidency is the most powerful branch. Article II, Section 3 has not played a major role in presidential power expansion although as discussed below, it should be interpreted in light of that expansion. Rather the scope of presidential power has been determined more by how executive power has actually been exercised than by constitutional text.
Vast accretions of federal power. There are a number of reasons why the President has become so dominant. First, the Presidency has become the focus of national power and culture, giving the President the unique ability to set the political agenda. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.
Second, presidential power has expanded because each successive President is able to rely on the actions of their predecessors in justifying their own use of power. In this way, the use of presidential power works as a one-way ratchet with each President building on the actions of those that came before.
Third, presidential power has grown because the size and jurisdiction of the federal government have expanded. The President directs an administrative state that oversees everything from prescription drugs to smoke stack emissions to college sports and from economic development to workplace safety to national parks management. As a result, the President has the ability to make decisions that reach almost every aspect of American life.
Further, as head of the federal government, presidents have unparalleled resources to use in advancing their political agenda. This includes access to military and civilian intelligence, the expertise and assistance of countless federal agencies, and the command of the most powerful military in the world. No other branch has such resources at its disposal.
Fourth, presidential power has expanded because of the need for exigent decisionmaking in the modern world. The suddenness with which contemporary events demand government response inevitably invests power in the only branch capable of reacting immediately—the Executive. Fifth, presidential power has increased because of the changed nature of politics.
In the current political environment, those elected to Congress often see their political duty as supporting their party rather than protecting their institutional concerns as legislators. Further, and paradoxically, contemporary politics has served to increase presidential power even when the Presidency and the Congress are controlled by different parties.
It is against this recognition of presidential power dominance that specific issues raised by Section 3—and particularly the Take Care Clause—should be analyzed. Given that the Constitution was designed to allow branches to check other branches, one should be cautious in interpreting particular provisions in a manner that would add to the current imbalance. But given the scope and breadth of the administrative state, there are often strong reasons for insulating particular agencies from political control in order to foster independent, nonpartisan decisionmaking.
Concerns with centering too much power in the Presidency also arise in relation to whether Presidents must comply with and defend laws that they believe are unconstitutional. Some contend that the Take Care provision grants Presidents wide discretion to disregard laws that they believe are unconstitutional even when there are substantial arguments to the contrary. Others suggest that Presidents may only refuse to comply with or defend laws when there is absolutely no credible constitutional defense of those provisions.
Given that reasoned constitutional interpretation varies so widely, the latter may be the better route. Otherwise, Presidents may be able to end-run the actions of Congress too easily.
Presidents have, and should have, wide-ranging discretion on how to enforce particular laws. As Professor Prakash points out in his essay, enforcing every federal law against every offender would be impossible. Further, there seems to be little doubt that Presidents may take policy considerations into account when setting enforcement priorities.
To this point, the courts have not yet come up with an answer to this question.
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