Small Business Jobs and Tax Relief Act Motion to Proceed--Continued

Floor Speech

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Mr. KYL. Mr. President, regarding yesterday's Supreme Court decision, there have been a variety of very interesting editorials, op-ed pieces, and blogs--many of them erudite and very useful for the analysis of the Court's opinion. Of course, it will take a long time for us to know precisely how all of this will work out over time. I thought I might refer to a couple of these opinions and op-eds and put them in the Record for people to see what a sampling might look like so they can more thoroughly analyze the opinion and then pose a question at the end.

I start with one of my friends, and I think one of the best columnists, even nationally, that I know. He writes for my local paper, the Arizona Republic. His name is Bob Robb, and he writes in his column on June 29:

Roberts' decision controlled the outcome, even though it was fully joined by no other justice. Here's what he concluded:

The federal government has no power under the Constitution's Commerce Clause to require individuals to purchase health insurance, as Obamacare does. However, the federal government does have the power to impose a financial penalty on people for not complying with the mandate the federal government has no authority to impose. That's because the penalty is actually a tax under Congress' constitutional taxing authority.

However, the penalty is not a tax for purposes of the Anti-Injunction Act, which would preclude the court from considering the legality until someone actually pays it.

Obviously, Mr. President, these dilemmas require some explanation. It may be--and this is my phrasing, not Bob Robb's--this is a good example of where the phrase of ``legal legerdemain'' comes into play.

Robb continues:

If Congress has no authority to require people to do something, such as purchase health insurance, how can it penalize them for not doing it?

And how can money owed exclusively because of failing to comply with an unconstitutional mandate be regarded as a tax and not a penalty?

He goes on to say:

The purpose of the constitutional taxing power is to raise the money to operate the government. The clause reads: ``Congress shall have the power to lay and collect taxes ..... to pay the debts and provide for the common defense and general welfare of the United States.''

The purpose of the penalty for not buying health insurance, however, isn't to raise revenue. The government would prefer not to get any money from it at all. The purpose is to compel compliance with the mandate that Roberts says the government has no power to impose.

There is nothing in the Constitution that can remotely be construed as giving Congress the power to tax people, not to raise revenue but to punish them for failing to do what Congress would like them to do.

And Robb concludes:

If Congress cannot do something directly, it shouldn't be able to do it indirectly through taxation.

Mr. President, this raises a very important question. If the taxing power can be used to institute mandates such as ObamaCare, the real question is, What limits are there on such taxing power? I believe this may be one of the most important unanswered questions in Justice Roberts' opinion.

One attempt to square the circle, in effect, was by a writer named Joshua Hawley in the Daily Caller in his column entitled ``What's behind Roberts' surprising decision?'' I note that Hawley comes to this with some credentials, being described as a former law clerk to Chief Justice Roberts as well as an associate law professor at the University of Missouri. In effect, as I read Hawley's piece, he said Justice Roberts actually constrained Congress's power dramatically by, first of all, drawing a clear line on the reasonable and proper extension of the commerce clause power. But he also said the taxing authority Roberts uses to justify Congress's action in ObamaCare is actually very limited.

In fact, he says that Roberts attempted to make this case sui generis--that is the Latin phrase for ``one of a kind''--and that only in this particular case would the taxing authority be permissibly used for Congress to require the people to do something.

I hope Hawley's analysis is correct. I am not so sure it is. Roberts' opinion certainly will make it more politically difficult for Congress to pass things that extend its authority because it will have to be clothed in the cloak of a tax, and Congress doesn't generally like to pass new taxes on people. But Congress and the lawyers who advise us are pretty clever about phrasing legislation in such a way that it would meet constitutional challenges.

Now that we have a new example of a power that we might exercise--namely, this expanded taxing power--I suspect we will see efforts in the future to clothe our legislation under the guise of that taxing power. If so, the constraints in Chief Justice Roberts' opinion would be no constraints at all.

There is an old saying that hard cases make bad law. I don't know that this was all that hard of a case, but it clearly resulted in a lot of different points of view from the Justices, from which one could conclude that at least they saw it as a hard case. I just hope the end result is not bad law, as I have suggested it could be here today.

I ask unanimous consent to have printed in the Record at the conclusion of my remarks the following pieces: first, the Robert Robb column dated June 29 from the Arizona Republic; second, the Wall Street Journal editorial of June 28, ``ObamaCare and the Power to Tax''; a Rich Lowry piece in National Review Online dated June 29, ``The Umpire Blinks''; a National View Online piece by The Editors dated June 28, ``Chief Justice Roberts's Folly''; and the Joshua Hawley piece dated June 28 from the Daily Caller.

There being no objection, the material was ordered to be printed in the RECORD,

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