[Congressional Record Volume 145, Number 8 (Tuesday, January 19, 1999)]
[Senate]
[Pages S434-S437]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. THURMOND:
S. 34. A bill to amend title 28, United States Code, to clarify the
remedial jurisdiction of inferior Federal courts; to the Committee on
the Judiciary.
the judicial taxation prohibition act
Mr. THURMOND. Mr. President, I rise today to introduce legislation to
prohibit Federal judges from imposing a tax increase as a judicial
remedy.
It has always been my firm belief that Federal judges exceed the
boundaries of their limited jurisdiction under the Constitution when
they order new taxes or order increases in existing tax rates.
The Founding Fathers clearly understood that taxation was a role for
the legislative branch and not the judicial branch. Article I of the
Constitution lists the legislative powers, one of which is that ``the
Congress shall have the power to lay and collect taxes.'' Article III
establishes the judicial powers, and the power to tax is nowhere
contained in Article III.
The Federalist Papers are also clear in this regard. In Federalist
No. 48, James Madison explained that ``the legislative branch alone has
access to the pockets of the people.'' In Federalist No. 78, Alexander
Hamilton stated, ``The judiciary . . . has no influence over . . . the
purse, no direction either of the strength or of the wealth of the
society, and can take no active resolution whatever.''
In 1990, in the case of Missouri v. Jenkins, five members of the
Supreme Court stated in dicta that although a Federal judge could not
directly raise taxes, he could order the local government to raise
taxes. There is no difference between a judge raising taxes and a judge
ordering a legislative official to raise taxes. I am hopeful that, if
the issue were directly before the Court today, a majority of the
current membership of the Court would reject that dicta and hold that
Federal judges do not have the power to order that taxes be raised.
However, in the event the Court does not correct this error, I am
introducing the Judicial Taxation Prohibition Act, which would prohibit
judges from raising taxes. I have introduced it in every Congress since
the Supreme Court's misguided decision was issued, and I intend to do
so until it is corrected. This legislation is essential to affirm the
separation of powers.
There is a simple reason why this distinction between the branches of
government is so important and must remain clear. The legislative
branch is responsible to the people through the democratic process.
However, the judicial branch is composed of individuals who are not
elected and have life tenure. By design, the members of the judicial
branch do not depend on the popular will for their offices. They are
not accountable to the people. They simply have no business setting the
rate of taxes the people must pay. For a judge to order that taxes be
increased amounts to taxation without representation. It is entirely
contrary to the understanding of the Founding Fathers.
The phrase ``taxation without representation'' recalls an important
time in America history that is worth repeating in some detail. The
Constitution can best be understood by referencing the era in which it
was adopted.
Not since Great Britain's ministry of George Grenville in 1765 have
the American people faced the assault of taxation without
representation as now authorized in the Jenkins decision. As part of
his imperial reforms to tighten British control in the colonies,
Grenville pushed the Stamp Act through the Parliament in 1765. This Act
required excise duties to be paid by the colonists in the form of
revenue stamps affixed to a variety of legal documents. This action
came at a time when the colonies were in an uproar over the Sugar Act
of 1764 which levied duties on certain imports such as sugar, indigo,
coffee, linens.
The ensuing firestorm of debate in America centered on the power of
Britain to tax the colonies. James Otis, a young Boston attorney,
echoed the opinion of most colonists stating that the Parliament did
not have power to tax the colonies because Americans had no
representation in that body. Mr. Otis had been attributed in 1761 with
the statement that ``taxation without representation is tyranny.''
In October 1765, delegates from nine states were sent to New York as
part of the Stamp Act Congress to protest the new law. It was during
this time that John Adams wrote in opposition to the Stamp Act, ``We
have always understood it to be a grand and fundamental principle . . .
that no freeman shall be subject to any tax to which he has not given
his own consent, in person or by proxy.'' A number of resolutions were
adopted by the Stamp Act Congress protesting the acts of Parliament.
One resolution stated, ``It is inseparably essential to the freedom of
a people . . . that no taxes be imposed on them, but with their own
consent, given personally or by their representatives.'' The
resolutions concluded that the Stamp Act had a ``manifest tendency to
subvert the rights and liberties of the colonists.''
Opposition to the Stamp Act was vehement throughout the colonies.
While Grenville's successor was determined to repeal the law, the
social, economic and political climate in the colonies brought on the
American Revolution. The principles expressed during the earlier crisis
against taxation without representation became firmly imbedded in our
Federal Constitution of 1787.
I recognize that some say this legislation is unconstitutional. They
argue that the Congress does not have the authority under Article III
to limit and regulate the jurisdiction of the inferior Federal courts.
This argument has no basis in the Constitution or common sense.
Article III, Section 1, of the Constitution provides jurisdiction to
the lower Federal courts as the ``Congress may from time to time ordain
and establish.'' There is no mandate in the Constitution to confer
equity jurisdiction to the inferior Federal courts. Congress has the
flexibility under Article III to ``ordain and establish'' the lower
Federal courts as it deems appropriate. This basic premise has been
upheld by the Supreme Court in a number of cases including Lawcourt v.
Phillips, Lauf v. E.G. Skinner and Co., Kline v. Burke Construction
Co., and Sheldon v. Sill.
In other words, the Congress was expressly granted the authority to
establish lower Federal courts, which it did. What the Congress has
been given the power to do, it can certainly decide to stop doing. By
passing this bill, the Congress would simply be limiting the
jurisdiction of the lower Federal courts in a small area.
It is also important to note that this legislation would not restrict
the power of the Federal courts to remedy Constitutional wrongs.
Clearly, the Court has the power to order a remedy for a Constitutional
violation that may include expenditures of money by Federal, State, or
local governments. This bill simply requires that if the Court orders
that money be spent, it is for the legislative body to decide how to
comply with that order. The legislative body may choose to raise taxes,
but it also may choose to cut spending or sell assets. That choice of
how to come up
[[Page S437]]
with the money should always be for the legislature to decide. I
believe it is clear under Article III that the Congress has the
authority to restrict the remedial jurisdiction of the Federal Courts
in this fashion.
Mr. President, the dispositive issue presented by the Jenkins
decision is whether the American people want, as a matter of national
policy, to be exposed to taxation without their consent by an
independent and insulated judiciary. I most assuredly believe they do
not.
Mr. President, how long will it be before a Federal judge orders tax
increases to build new highways or prisons? I do not believe the
Founding Fathers had this type of activisim in mind when they
established the judicial branch of government.
Judicial activism is a matter of great concern to me and has been for
many years. I have always felt that Federal judges must strictly adhere
to the principle that it is their role to interpret the law and not
make the law. This simply principle is fundamental to our system of
government.
The American people deserve a response to the Jenkins decision. We
must provide protection against the imposition of taxes by an
unelected, unaccountable judiciary. We must not permit this blatant
violation of the separation of powers. We have a duty to right this
wrong.
Mr. President, I ask unanimous consent that this bill be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 34
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Judicial Taxation
Prohibition Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) a variety of effective and appropriate judicial
remedies are available for the full redress of legal and
constitutional violations under existing law, and that the
imposition or increase of taxes by courts is neither
necessary nor appropriate for the full and effective exercise
of Federal court jurisdiction;
(2) the imposition or increase of taxes by judicial order
constitutes an unauthorized and inappropriate exercise of the
judicial power under the Constitution of the United States
and is incompatible with traditional principles of law and
government of the United States and the basic principle of
the United States that taxation without representation is
tyranny;
(3) Federal courts exceed the proper boundaries of their
limited jurisdiction and authority under the Constitution of
the United States, and impermissibly intrude on the
legislative function in a democratic system of government,
when they issue orders requiring the imposition of new taxes
or the increase of existing taxes; and
(4) Congress retains the authority under article III,
sections 1 and 2 of the Constitution of the United States to
limit and regulate the jurisdiction of the inferior Federal
courts that Congress has seen fit to establish, and such
authority includes the power to limit the remedial authority
of inferior Federal courts.
SEC. 3. AMENDMENT TO TITLE 28.
(a) In General.--Chapter 85 of title 28, United States
Code, is amended by inserting after section 1341 the
following:
``Sec. 1341A. Prohibition of judicial imposition or increase
of taxes
``(a) Notwithstanding any other provision of law, no
inferior court established by Congress shall have
jurisdiction to issue any remedy, order, injunction, writ,
judgment, or other judicial decree requiring the Federal
Government or any State or local government to impose any new
tax or to increase any existing tax or tax rate.
``(b) Nothing in this section shall prohibit inferior
Federal courts from ordering duly authorized remedies,
otherwise within the jurisdiction of those courts, that may
require expenditures by a Federal, State, or local government
in any case in which those expenditures are necessary to
effectuate those remedies.
``(c) For purposes of this section, the term `tax'
includes--
``(1) personal income taxes;
``(2) real and personal property taxes;
``(3) sales and transfer taxes;
``(4) estate and gift taxes;
``(5) excise taxes;
``(6) user taxes;
``(7) corporate and business income taxes; and
``(8) licensing fees or taxes.''.
(b) Table of Sections.--The table of sections for chapter
85 of title 28, United States Code, is amended by inserting
after the item relating to section 1341 the following:
``1341A. Prohibition of judicial imposition or increase of taxes.''.
SEC. 4. APPLICABILITY.
This Act and the amendments made by this Act shall apply to
cases pending or commenced in a Federal court on or after the
date of enactment of this Act.
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