The Power of a Single Semi-Colon

by Rich Smith

Many folks, well perhaps only a few, ponder Chief Justice Roberts’ decision to uphold the constitutionality of the Affordable Health Care Act (Obamacare).  This required him to declare the mandate that all individuals purchase insurance or pay a fine is a tax and not a penalty. 

The purpose of the US Constitution is to define the powers of the Federal government and to protect citizens by specifically limiting those powers.  Article I Section 8 of the Constitution enumerates those powers given to Congress, and Section 9 enumerates those powers denied to them.  The first power in Section 8 is:

“Congress shall have the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States.”

The punctuation used in the phrase is critical.  Representative Morris (PA), chairman of the Style Committee of the 1798 Constitutional Congress, wanted to expand the power for Congress to “lay and collect” taxes beyond those few listed, so in the first printed edition he replaced the comma following the word “taxes” in Section 8 with a semicolon, thereby giving “taxes” special plenary (total) meaning separate from the intended few powers to tax such as duties, imposts and excises, which were the only Federal taxes the founding Fathers (especially James Madison) intended. This seemingly innocuous change (if retained) would give Congress virtually power to impose any tax as long as the tax promoted the “common defense and general welfare of the United States”.

Member Robert Sherman of the 1798 Constitutional Congress saw through this subterfuge and insisted that the semicolon be removed from the printed document and the comma reinserted in the printed final document, where it remains to this day. 

Since the eighteenth century, some in Congress have argued that the taxing power given to them is unbounded and several times attempted to expand their power to tax “for the common defense and general welfare of the Nation”.  Our founding fathers, aware that unfair taxation was one of the main reasons for the Declaration of Independence, were very cautions when it came to taxation and wrote protections into the Constitution intended to limit the Congressional power to tax.  

Article 1 section 9 of the Constitution lists those powers denied to Congress, and paragraph 4 specifies that “No capitation (head tax) or other direct tax shall be laid unless in proportion to the census”.  In other words, Congress cannot impose individual taxes.  This is exactly why it became necessary in 1913 to propose and ratify the XVI amendment that allows Congress to “lay and collect taxes on income” without apportionment.

This brings us to the justification used by Chief Justice John Roberts in his ruling in NFIB v Sebelius June 2012.  In that ruling, he declared the mandate to purchase individual insurance was a tax and not a penalty, and used that argument to uphold the Affordable Health Care Act (Obamacare) as constitutional.  Justice Roberts is well aware of the taxing limitations imposed by the Constitution.  His decision to declare the insurance mandate a tax yet not a head tax goes beyond understanding.  In effect, Justice Roberts has replaced the comma following the word “taxes” in Article I Section 8 with a semicolon and ignored the limits imposed by Article 1 section 9, thereby expanding the Congressional power to tax for the “general welfare” of the United States.

As some pundits have said, Congress now has to power to tax the very air we breathe (as in the failed Clean Air Act).