In Justice Roberts’ written opinion upholding Obamacare as being constitutional, he wrote:
”A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, "without regard to property, profession, or any other circumstance." Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. 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.”
Thus, by Roberts very own words, if the shared responsibility payment ___ better known as the individual mandate tax ___ takes the form of a direct tax, it must be apportioned by the commands of our Constitution!
Justice Roberts also writes in an attempt to narrow down what a direct tax is: ”Even when the Direct Tax Clause was written it was unclear what else, other than a capitation (also known as a "head tax" or a "poll tax"), might be a direct tax.” But to be more accurate, on August 20th, of the Convention which framed our Constitution, Madison’s Notes indicate: “Mr. KING asked what was the precise meaning of direct taxation? No one answd.” This doesn’t mean our founders could not distinguish a direct tax from one which is indirect. It more likely suggests a succinct definition of a direct tax is difficult to compose, just like identifying obscenity is, although Justice Potter Stewart indicated “I know it when I see it”.
What is clear, and abundantly so is, not only does our Constitution command under Article 1, Section 2, Clause 3, that: ”Representatives and direct Taxes shall be apportioned among the several States…”, it goes on to emphatically command under another provision of our Constitution [Article 1, Section 9, Clause 4] that ”No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
“Other direct, tax”, is evidence that whatever may have been considered as a “direct tax” ___ inclusive of and in addition to a “Capitation tax” by our forefathers, ___ the rule of apportionment must be applied. And this brings us to the question, what was considered as being a “direct tax” by our forefathers? What are the characteristics which, at the time our Constitution was being framed and ratified, would distinguish an indirect tax from one which is “direct”?
Roberts unwittingly gives us an answer to this very question when he points to Hylton v. United States, 3 Dall. 1796, decided shortly after the ratification of our Constitution when many of our nation’s forefathers were very much alive. But Roberts points to this case as somehow being evidence the shared responsibility payment is not a direct tax and need not be apportioned. What he seems to have overlooked is the tax in Hylton was upon carriages used in the conveyance of persons, and was considered a tax upon luxury, and therefore an indirect tax and not subject to the rule of apportionment. And this distinction to tax carriages as a luxury [the real subject of the tax] is made known in crystal clear language in the “Act laying duties upon carriages for the conveyance of persons.”
http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=496
”Provided always, That nothing herein contained shall be construed to charge with a duty, any carriage usually and chiefly employed in husbandry, or for transporting or carrying, goods, wares, merchandise, produce or commodities.”
Keep in mind that taxes laid upon property were considered to be direct taxes, and this is substantiated during the House Debates and with reference to the tax upon carriages! But a tax upon the luxury use of carriages is an entirely different story!
Mr. Sedgwick said that "a capitation tax, and taxes on land and on property and income generally, were direct charges, as well in the immediate as ultimate sources of contribution. He had considered those, and those only, as direct taxes in their operation and effects. On the other hand, a tax imposed on a specific article of personal property, and particularly if objects of luxury, as in the case under consideration, he had never supposed had been considered a direct tax, within the meaning of the Constitution."SEE: House of Representatives, Tuesday, May 6th, 1794,page 644
A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875
So, there is an identifiable reason why the tax in Hylton was considered to be indirect, and not subject to the rule of apportionment. While carriages chiefly employed in husbandry, or for transporting or carrying, goods, wares, merchandise, produce or commodities [a none luxury use] and were not taxed, carriages used for the conveyance of persons, apparently considered a luxury use of carriages, was the subject of the tax making it indirect and not required to be apportioned.
When Roberts wrote that “The shared responsibility payment is thus not a direct tax that must be apportioned among the several States”, he either ignored or made no attempt to discover the historical characteristics and documentation which identify a direct tax, and distinguish it from an indirect tax as understood by our founders.
A review of Adam Smith, Wealth of Nations, a contemporary writing of the time which our Founders were familiar with, we find the following reference regarding a capitation tax as being a direct tax:
“Capitation taxes, so far as they are levied upon the lower ranks of people, are direct taxes upon the wages of labor.” Adam Smith, Wealth of Nations, id. at pg. 540.
The shared responsibility payment is in fact to be levied directly upon the wage earner and computed from annual wages earned, and thus takes the form of a direct tax as understood by our founders!
The fact is, there is a consistency among our forefathers comments that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things which individuals are free to acquired or reject. For example, Hamilton’s brief in the Hylton carriage case which Roberts quoted says: ’The following are presumed to be the only direct taxes: Capitation or poll taxes, taxes on lands and buildings, general assessments, whether on the whole property of individuals, or on their whole real or personal estate. All else must, of necessity, be considered as indirect taxes.’ In each of the above mentioned cases, is the individual not assessed directly by government, which is a distinguishing characteristic of a direct tax and the same as the “shared responsibility payment”?
In fact, the shared responsibility payment is levied directly upon a wage earners property [their earned wage], and as such, takes the form of a direct tax and must be apportioned as commanded by our Constitution.
Finally, it must be also mentioned that it is not within the judicial branch of government’s authorized powers, when determining the constitutionality of a tax, to create or suggest for the legislature the subject matter upon which the questioned tax is being laid. This power is placed exclusivity in our legislative branch of government, and in this case, Congress has failed to identify a specific subject matter being taxed under the “shared responsibility payment” making it indirect and not requiring an apportionment.
JWK
