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by jtx, ©2012

What was Chief Justice John Roberts trying to accomplish with his "tax" decision?

(Jul. 2, 2012) — Oh where, oh where can he be…With his ears cut short and his tail cut long, Oh where, oh where can he be?

Borrowing from the old children’s nursery rhyme and song above is probably not a bad thing since it is neither a “penalty” nor a “tax.”  The man in question may have other novel interpretations, though, as we have recently seen.

 It is pretty well-known that the Chief Justice Roberts is extraordinarily concerned about the place “his” court will occupy in the pantheon of “Great Courts” and “Great Chief Justices” and he has even opined that he hopes and thinks that “his” court will be at least right up there with the Marshall Court with its CJ known as the Great Chief Justice.   Perhaps that is why Roberts is striving strenuously in his latest efforts to become a super-Federalist as was Marshall.  That is the only intent that seems to explain his quaint, tortured, and (one must say) unconstitutional logic in the recent healthcare act decision. unconstitutional???  Yes, and very much so, as we’ll discover a bit later.

Oh, and yes, CJ Roberts also wants his court to be “collegial” (whatever that might mean) as was Marshall’s and perhaps these latest two or three decisions where El Jefe has come down on the liberal side of the fence and clearly against not only liberty but also the Constitution and even common sense has made some observers wonder if his epileptic seizure in 2007 (or perhaps the medications for the affliction) when he was rushed from his summer cottage in Maine to a hospital might have affected his reasoning in the intervening cases though it seems unlikely.  Let’s say it had no effect and try to see what happened to “Our Guy”!!

Looking only at the decisions in the AZ, Stolen Valor, and Care cases confirms the wisdom of the nursery rhyme above.  Roberts, who many had viewed as a somewhat (at least) conservative view on the Court, seems to have taken leave of his senses and even run away.  In the AZ case his opinions allowed the elimination of State sovereignty with some VERY questionable reasoning and might be seen as a shot across the bow of other States who had the temerity to think the 10th Amendment actually meant something or that having state laws to implement federal legislation within State boundaries was somehow not verboten.  The Stolen Valor case allowed him to say “it’s OK to lie” about stuff like being a Medal of Honor winner since most of them are dead anyway and probably won’t object and, hey, lying is OK as the liberals do it routinely – look at Obama, Reid,  Pelosi, etc.  The real coup de gras to his historical persona, though, is the “reasoning” in the ObamaCare (ZeroCare) case.  Let’s briefly see what we can observe.

Starting from the premise of being “collegial” he would no doubt not wish to alienate the four very liberal justices.  One of them who actually detests the Constitution and has said so publicly in other countries advising them to “look elsewhere” for a model Constitution of their own as ours was outdated and, basically, a piece of antiquated folderol.  One of the others had helped grease the skids of the ZeroCare legislation through Congress and yet refused to recuse herself.   Strange and surely in contravention to the precepts involved.  The other two, herein called “wise and otherwise,” to assuage hurt feelings must needs be have some assurance that their CJ loves them by siding with their opinions.

Perhaps this was his idea of a trade of sorts where if they would write to preclude the use of the Commerce Clause all the time and rule it invalid, he would “find” the ephemeral “tax” which was never there and all five of them could then proclaim “victory” since the bill would be passed as “law” – exceedingly strong, stinging dissents notwithstanding.   Let’s be generous and say that in the CJ’s mind’s eye this was a victory of removing the much-misused Commerce Clause that the libs have used as a sandbox to play havoc with rational litigation for generations.  He must surely have figured this would make those of a Constitutional bent proud of him for putting a stake through the heart of that clause and this would explain the “ears cut short” in the nursery rhyme – he completely clipped the Commerce Clause short or so he thought.  But what about the “tail cut long” part???  Patience, we’re coming to that …

When is a tax not a tax???  When it’s a penalty, obviously, and being collegial this is what the CJ believed he “discovered” relying on some exceedingly strained logic from some out-of-court liberal legalese dragooned for the very thoughts on this matter.  We’ll ignore the part that this “tax” bill didn’t really originate in the House.  Problem is the good CJ has probably been too busy with his Federalism-for-history quest to have read the US Constitution or the XVI Amendment.  Surely earlier in his legal career Roberts encountered the fact that there are very few types of taxes that are constitutionally valid; basically direct taxes/1/  (with XVI Amendment restrictions) and indirect taxes – germane to this discussion are the excise and sales taxes (indirect) which have been used for many generations and are clearly constitutional; and also the quaint bird of an “income tax” (direct) allowed under the 16th Amendment by convoluted reasoning similar to that indulged in the ZeroCare act. /2/

Certainly the ZeroCare “tax” is not an excise tax and in reading the 16th Amendment (and assuming the amendment to be constitutional) one quickly discovers it to grant Congress the power to “collect taxes on incomes, from whatever source derived.” The Supreme Court has defined “derived” income to mean “undeniable accessions to wealth.” Here, the mere refusal to purchase a product is not any kind of “income” or accession of wealth.  This means that the “ZeroCare Tax” discovered by rousing Federalist-wannabe logic neither walks like a duck nor talks like a duck and is, therefore, not only not a duck but it is also not a constitutional tax at all but merely an illegal assertion of governmental power … sort of a “give me your money when I say ‘cause I need it” play.  It is a direct tax on individuals no matter the convoluted reasoning.

The implications here are chilling in that the power by Congress to make laws on any subject, impose a fine for noncompliance, have the IRS enforce the fine, and then claim that the entire misbegotten structure is part of the tax power.   No one with a serious reading of the Constitution would believe the Founders had any such thing in mind!!!  The result would gut Article I of the Constitution, which grants Congress only 18 specific powers – and does not grant a general power to legislate on everything in the manner described.  If one is an uber-progressive/socialist/communist, what’s not to like here (as Footnote /1/ shows)???  Other than that … not so great!!!  It rips the Constitution apart very completely and thoroughly.  Perhaps even more so than having a man who has never shown himself to be constitutionally eligible to hold the office he now occupies.

It is now eminently clear that the reason SCOTUS refused to hear the very well-pleaded Kerchner et al v Obama & Congress case in 2010 was that they could not muster a 4th vote “in conference” for such a hearing when there were 3 clearly who would vote for such a hearing: Scalia, Thomas, and Alito.  It now is apparent that Roberts was merely being “collegial” by not being the 4th vote to take up the case (dealing with Obama’s eligibility and filed while the man was still president-elect but before his swearing-in).

Perhaps CJ Roberts should take a deep breath, back up and rescind in at least this last case his decision, “collegiality” notwithstanding.  True, it will reduce “his tail cut long” exercise of declaring a tax that is not a tax, but that’s a good thing in the instant circumstance.  If he does not, he runs into the certainty of being known NOT as the “Great Justice” on a par with John Marshall, but rather as the last Chief Justice of the Supreme Court and the one who destroyed the Constitutional Republic.  We should all keep in mind here that Chief Justice John Marshall is the guy who said “the power to tax is the power to destroy” … and that’s exactly what the ZeroCare decision does.



18th century comment:

“The power of direct taxation applies to every individual … it cannot be evaded like the objects of imposts or excise, and will be paid, because all that a man hath will he give for his head. This tax is so congenial to the nature of despotism, that it has ever been a favorite under such governments. …

The power of direct taxation will further apply to every individual … however oppressive, the people will have but this alternative, either to pay the tax, or let their property be taken for all resistance will be vain.”

The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to their constituents.


Before the Lincoln administration there was never an “income tax” since it was known to be unconstitutional as a direct tax.  As a measure to ostensibly help pay for the costs of the Was Between The States, an income tax bill was passed and put into effect anyway.  It was most likely unconstitutional but there were other more overriding concerns at the time. The actual form for reporting this tax from the 1860s still exists within the IRS archives where I obtained a copy a few years ago.  After several years of desultory collections the income tax was ruled unconstitutional by the courts and as I recall was so ruled up until the time of the Taft administration which made the astoundingly bad political deal to place the 16th Amendment up for a vote (they were sure it would not pass as an amendment or if so that it would not be ratified).  And this, kiddies, is how a Republican administration hugely helped give us the 16th Amendment which finally allowed levying of certain direct taxes on incomes – heretofore unconstitutional and so voted more than once by the Supreme Court.

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  1. I would submit that the income tax is not some kind of “quaint bird”.

    It is not a third category of constitutional tax free of the restrictions of Article I of the Constitution. The Supreme Court, in a landmark case in 1916, ruled that the income tax which was the subject of the Sixteenth Amendment was not a new class of taxing authority granted to Congress, but rather an indirect excise tax subject to the requirements of Article I.

    The reason we never hear about this decision is that the government does not want us to know about it. Just like the Minor v. Happersett decision in the presidential eligibility controversy, the government wishes that this income tax ruling by the Supreme Court would quietly disappear, and that the American people would continue to accept the government line that the Sixteenth Amendment authorized some new class of tax. This is clearly false, but exposing the truth is not an easy matter.

    In the fall-out from the troubling decision of the U.S. Supreme Court in the Obamacare challenge, it has become clear that almost nobody understands the tax clauses of the United States Constitution, nor do the various commentators, including the writer of this piece (jtx), seem to be aware of the watershed Supreme Court decision in the Brushaber case in 1916 regarding the effect of the 16th Amendment [Brushaber v. Union Pacific RR Co].

    (Note: Brushaber was a stockholder in the Union Pacific Railroad.)

    The Supreme Court decision in the Brushaber case challenging the constitutionality of the Income Tax Act of 1913 established three irrefutable facts:

    1. The Sixteenth Amendment granted no new taxing authority to Congress which did not exist prior to the amendment.

    2. The income tax, to the extent that it is applicable, is an indirect excise tax subject to the constitutional requirement of uniformity.

    3. There is no third class of taxes authorized in the Constitution other than the two classes specified in Article I of the Constitution – direct taxes subject to the requirement of apportionment, and indirect taxes subject to the requirement of uniformity.

    The parallel with the widespread conscious disregard of the Supreme Court’s definition of “natural born citizen” in the Minor v. Happersett case in 1875 is striking.

    It appears that when we are dealing with “inconvenient truths”, relevant Supreme Court decisions interpreting basic constitutional provisions may just be ignored. This is the mark of the end of the rule of law and the beginning of tyranny.

    Does anybody care about the Constitution any longer?

    Brushaber says:

    “…the Amendment contains nothing repudiating or challenging the ruling in the Pollock Case (an 1895 Supreme Court decision, Pollock v. Farmer’s Loan and Trust Co., ruling that the income tax is unconstitutional)…the purpose (of the Sixteenth Amendment) was not to change the existing interpretation except to the extent necessary to accomplish the result intended… (the purpose was not) to take an income tax out of the class of excises, duties, and imposts, and place it in the class of direct taxes.”

    [Brushaber v. Union Pacific RR. Co. – 240 U.S. 1 (1916)]


    Stanton says:

    “…by the previous ruling (Brushaber) it was settled that the provisions of the 16th Amendment conferred no new power of taxation, but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged, and being placed in the category of direct taxation subject to apportionment…”.

    [Stanton v. Baltic Mining Co., 240 U.S. 103 (1916)]


    Thus the Supreme Court is saying that the income tax is an indirect tax (excise) authorized under Article I Section 8 of the Constitution. The 16th amendment “conferred no new power of taxation”.

    As such its applicability must be very limited since it must be uniform, and its application must result from voluntary conduct of taxable actions or activities. The federal gasoline tax is the common example.

    The federal income tax as we know it clearly and simply does not qualify as an excise tax under Article I Section 8 of the Constitution. It is certainly not uniform, and it is not voluntary despite all the IRS bleating about “voluntary compliance”. It is also not collected by a third party, which is another significant characteristic of an excise tax. (In “Cracking the Code”, author Peter Hendrickson identifies certain federally-connected activities involving the exercise of a federal privilege which may create a federal tax liability under the 16th Amendment.)

    Furthermore there is no third class of taxes beyond what is authorized in Article I. The analysis of the Sixteenth Amendment in Brushaber is conducted entirely within the context of the Article I taxing authority granted to Congress. The Sixteenth Amendment did not amend or change Article I just as the Fourteenth Amendment did not amend or change Article II.

    The Supreme Court never says, in these cases or in any other cases, that a third class of taxes was created by the Sixteenth Amendment. Furthermore, the strange behavior of the IRS and its officials indicates that they well know that they are operating outside the bounds of the Constitution. I shudder to think about what new outrages from the IRS may be in our future once the thousands of new IRS agents authorized in the Obamacare legislation get to work harassing the American people.

    The parallel to the “natural born citizen” issue, if one exists, is that Article I stands on its own unchanged by the Sixteenth Amendment, just as Article II stands on its own unchanged by the Fourteenth Amendment . Neither of these original articles were changed or modified by the respective amendments. If they had been modified, a specific reference to the related language of the articles in the original Constitution which were being changed would have been required.

    Beyond the issue raised by these facts is the whole issue of the fraudulent ratification of the Sixteenth Amendment, carried out in a shameless act of fraud against the American people. Bill Benson documented this thoroughly with certified documents from the National Archive and from the archives of each of the state capitals. Many of the states which were listed as having ratified never did so, or even rejected the amendment, while many states altered the language of the proposed amendment which nullified any purported ratification.

    In the end it was determined that not ONE single state legitimately and properly ratified the Sixteenth Amendment. As to my own state, there is no record in Sacramento that the State of California ever ratified the Sixteenth Amendment, yet California is listed as one of the ratifying states.

    Here is a link to a legal brief in the Benson case:


    You might want to take the time to view the following video produced by the Freedom Law School:

    Video of Conference in Washington D.C. hosted by Bob Schulz/We the
    People Foundation for Constitutional Education, to which the IRS was invited and declined to participate:


    Bill Benson’s presentation is covered in the first 34 minutes, followed by former IRS CID Special Agent Joe Banister for an additional 25 minutes.

    Joe Banister is a CPA who devoted several years to investigating the claims he encountered from Devvy Kidd about the illegal status of the income tax while still an employee of the IRS. He submitted a report to his superiors outlining his devastating conclusions. Instead of responding to his charges of illegal conduct by the agency, his superiors forced him to resign.

    The third portion of the video (starting at 1:00:00) contains a presentation by Bill Conklin, author of “Why No One is Required to File Tax Returns”.

    The final portion of the conference (starting at 1:26:00) contains an excellent presentation by Attorney Lowell Becraft concerning his representation of Bill Benson in the fraudulent ratification issue. He also discusses the fact that the confusion surrounding the constitutionality of the income tax has created a due process problem for the American people which the courts have refused to address. Sound familiar?

    Lowell has been at the forefront of the tax freedom movement. He worked closely with Attorney Tom Cryer until Tom’s death last month, and has been interviewed numerous times by Joe Banister as listed at the link above.

    Bob Schulz concludes (at 1:55:00) by saying that “there is no statute – Congress has passed no law compelling people to file income tax returns and pay income taxes”. He then reviews the powers of taxation incorporated in the Constitution in Article I by the Founders, and a brief history of the key Supreme Court income tax cases.

    A perception seems to be well-established that the income tax is legitimate as a third class of constitutionally-based taxing authority created by the Sixteenth Amendment. This is the IRS line, but it is not correct. If this erroneous belief is accepted as truth, undoing the income tax will be immeasurably more difficult.

    This belief also leads commentators who should know better (like Bill O’Reilly in his July 2 broadcast) to say that the government can do whatever it wants with taxes, as if Article I of the Constitution does not exist. I can’t believe what I am hearing from these so-called conservative commentators.

    It is crucial that we get rid of the income tax and the Federal Reserve System as soon as possible in order to force a major restructuring and slimming down of the federal government. Otherwise we will never be able to turn this thing around.