In upholding the federal health care law’s individual mandate as a tax, Chief Justice John Roberts reiterated Justice Oliver Wendell Holmes’ promise that “[t]he power to tax is not the power to destroy while this Court sits.” With the IRS’ recent targeted investigations of tea parties, balanced budget advocates, and constitutional study groups across the nation, the Chief Justice may soon have the opportunity to keep his promise.
The IRS is the chief enforcer of the federal health care law. In deciding when to impose the individual mandate penalty, the IRS will have to determine whether taxpayers have “qualifying health insurance coverage,” whether employers should be penalized for failing to provide such insurance to their employees, and if various exemptions apply. In the wrong hands or subject to the wrong directives, this immense power could all-too-easily result in the IRS rooting through private medical records and billings. The federal Health Insurance Portability and Accountability Act already authorizes your physician, hospital and insurance company—and their business associates—to disclose your personal medical information, history and records to government agencies for law enforcement and regulatory purposes without your consent.
Ever since the McCarthy era of the 1950s, courts have established that the taxing power may not be wielded to punish political enemies. The Court of that era probably never foresaw the day when its rulings would be applied to protect those who believe in constitutionally limited government, as opposed to those who sought to overthrow it. But there is no more important time than the present to revitalize and apply such limitations on the federal government’s power to tax.
In a twist that is almost unbelievable, news agencies reported last week that the same person who oversaw the targeting of conservative groups seeking tax exempt status will be responsible for overseeing the IRS’ enforcement of the federal health care law. We should all shudder at the thought.