[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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