A Short Post Script on NFIB
This is a short postscript to my previous posts on NFIB v. Sebelius. In those posts, I came to the conclusion that the lead opinion “works,” to whatever extent it does, because it takes a static view of the structural elements of the national government ordained by the Constitution. On a dynamic view of the workings of that government, it is questionable that a law can be interpreted as an exercise of the power to lay and collect taxes if it has the effect of imposing a new tax sub rosa.
The reason this outcome is questionable under a dynamic view of the federal legislative process ordained by the Constitution has to do with accountability to the people. When Congress explicitly disclaims an intention to use its power to lay and collect taxes as a source of authority for a measure, upholding that measure as a tax has the same effect as procuring the reelection of legislators by deceiving the voters about their voting records. It therefore interferes with the principle of accountability to the people that the structure of the national government under the Constitution presupposes.
The reason for this postscript is that I had forgotten about the following passage from Federalist No. 63, which I think supports my point:
I add, as a sixth defect [in a legislature that does not include a chamber organized as the Senate is organized] the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.
Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents.
Taxation by inadvertence, to say nothing of taxation by stealth, is an impediment to the formation of a “proper judgment . . . by the constituents.” To that extent, at least, it is a “defect.”
P.P.S. As Madison explains in Federalist No. 62, the “defects” to which he refers in the passage quoted above are the “inconveniences” that a republic suffers if it lacks an institution like the Senate. The advantage of incorporating a body like the Senate into the legislative process, Madison explains, is that the Senate is less numerous than the House, its members are chosen less directly, and its composition changes more slowly. Federalist Nos. 62-63 are part of a larger set of numbers that discuss the composition of Congress. For that reason, it was natural for Madison to describe the “conveniences” of the Senate in terms of the Senate’s differences from the House. It is interesting to note, however, that the same conveniences could have been explained in another context in terms of the ways in which the Senate resembles the Court.