Rick Esenberg

Rick Esenberg is the founder and current President and General Counsel of the Wisconsin Institute for Law & Liberty. Rick comes to WILL after a four-year stint on the faculty at Marquette University Law School where his scholarship concentrated on law and religion, election law and religion, the regulation and nature of public discourse, and the Wisconsin Constitution. He continues to teach at Marquette as a member of the adjunct faculty. Prior to joining the faculty at Marquette, Rick was Vice President and General Counsel of Rite Hite Holding Corporation in Milwaukee. At Rite Hite, he oversaw business expansions throughout Europe, Latin America, and Canada and served as lead trial counsel in major intellectual property and advertising litigation. From 1981 to 1997, he was an associate and then litigation partner at Foley & Lardner where he was trial and appellate counsel in numerous public-law cases. Rick is a frequent columnist in the Milwaukee Journal Sentinel and commentator in both the local and national media. He publishes a political blog “Shark and Shepherd ”. His scholarship has appeared in such publications as the Harvard Journal of Law & Public Policy, Wake Forest Law Review, and William & Mary Bill of Rights Journal. Rick holds a J.D., magna cum laude, from Harvard Law School, where he was an editor of the Harvard Law Review, and a B.A., summa cum laude, in political science from the University of Wisconsin-Milwaukee.

Roberts’ Quantum Constitution: The Simultaneous Tax/Non-Tax

July 2, 2012

Like most conservatives and libertarians, I am dismayed by the health care decision. I am puzzled by the Chief Justice’s quantum Constitution in which, with a nod to Schrodinger’s Cat, something can be both tax and non-tax. (I appreciate what the Chief Justice said about Congressional intent being now relevant and then not, but saying the words doesn’t make them persuasive.) I am concerned about the inconsistency of a view of the Commerce authority that can be so readily trumped by protean concepts of what is a tax and penalty. That could be our constitutional scheme (it is not completely incoherent), but it strikes me as undesirable, ahistorical, and overly formalistic.

At first blush, it would seem that, subject to non-Article I considerations, Congress may have its way – whatever that may be – as long as it imposes its will through the exaction of a financial penalty to be collected on the miscreant’s tax return. The Chief Justice’s opinion at least suggests that taxation is the enumerated power that permits Congress to do almost anything not included among the others.

Yet it seems clear that the Chief Justice does not regard the “taxation dodge” to the limits on Congress’ authority as unlimited. He assures us that the “power to tax” is not the power “to destroy” as long as the Court sits. In concluding that the mandate’s “shared responsibility payments” “could be” characterized as a tax, the Chief Justice observes that it will almost be certainly be “far less than” the cost of insurance for most and that many who are subject to it will choose to pay rather than insure. Given his express recognition that there is some point at which a “tax” may become a “mere penalty,” this suggests that a “tax” may be a “penalty” as soon as it becomes “coercive” as opposed to merely “encouraging.” Read More »