[Congressional Record Volume 145, Number 86 (Thursday, June 17, 1999)]
[Extensions of Remarks]
[Pages E1310-E1311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         BAN JUDICIAL TAXATION

                                 ______
                                 

                        HON. DONALD A. MANZULLO

                              of illinois

                    in the house of representatives

                        Thursday, June 17, 1999

  Mr. MANZULLO. Mr. Speaker, today I am introducing an amendment to the 
Constitution to ban the Judiciary at any level of government from 
levying or increasing taxes. Why? Because levying and increasing taxes 
is a function of the legislative branch of government. Consider, after 
all, the separation of powers doctrine. Most citizens of our great 
country have heard at one time or another about separation of powers. 
We were taught about it in our civics classes growing up. We learned 
about it in our history classes. We read about it in the Constitution. 
I, for one, believe that the Constitution is clear in its delineation 
of duties. I don't believe the Founding Fathers meant to leave much to 
interpretation. There really are no mincing of words. Please consider:

       Article I. Section 8. The Congress shall have Power to lay 
     and collect Taxes, Duties, Imposts and Excises, to pay the 
     Debts and provide for the common Defense and general Welfare 
     of the United States, but all duties, Imposts and Excises 
     shall be uniform throughout the United States.--United States 
     Constitution
       Article I. Section 7. All Bills for raising Revenue shall 
     originate in the House of Representatives; but the Senate may 
     propose or concur with Amendments as on other bills.--United 
     States Constitution

  These words are succinct and explicit, and they spell out exactly how 
taxes are to be raised. If there is any question, consider the 
following quotations from other relevant sources:

       ``Were the power of judging joined with the legislative, 
     the life and liberty of the subject would be exposed to 
     arbitrary control for the judge would then get the 
     legislator. Were it joined to the executive power, the judge 
     might behave with all of the violence of an oppressor.''
       ``There can be no liberty where the legislative and 
     executive powers are united in the same person, or body of 
     magistrates, or, if the power of judging be not separated 
     from the legislative and executive powers . . . ''--James 
     Madison, Federalist Number 47, quoting Montesquieu to defend 
     the Constitution's separation of powers.
       ``[T]he judiciary, from the nature of its functions, will 
     always be the least dangerous to the political rights of the 
     constitution; because it will be least in a capacity to annoy 
     or injure them. The executive not only dispenses the honors, 
     but holds the sword of the community. The legislature not 
     only commands the purse, but prescribes the rules by which 
     the duties and rights of every citizen are to be regulated. 
     The judiciary on the contrary has no influence over either 
     the sword or the purse, no direction either of the strength 
     or of the wealth of the society, and can take no active 
     resolution, whatever. It may truly be said to have neither 
     Force nor Will, but merely judgement; and ultimately must 
     depend upon the aid of the executive arm even for the 
     efficacy of its judgements.''--Alexander Hamilton, Federalist 
     Number 78
       ``The interpretation of the laws is the proper and peculiar 
     province of the courts. A constitution is in fact, and must 
     be, regarded by the judges as a fundamental law. It therefore 
     belongs to them to ascertain its meaning as well as the 
     meaning of any particular act proceeding from the legislative 
     body.''--Alexander Hamilton, Federalist Number 78

  If there is any phrase that sums up the reason for the existence of 
this republic, that phrase is ``no taxation without representation.'' 
These are the words of Thomas Jefferson, who, when he wrote the 
Declaration of Independence, cited King George for three things: (1) 
the king refused to pass laws that would allow people the right to be 
represented in their own legislature; (2) he called together 
legislative bodies at unusual times so nothing could be done; and (3) 
he imposed taxes on the people without their consent!
  Finally, James Madison asked the rhetorical question in Federalist 
number 33, ``[w]hat is a power but the ability or faculty of doing a 
thing? What is the power of laying and collecting taxes but a 
legislative power?''
  Why, then, 210 years after the ratification of our nation's 
Constitution do we have unelected judges--from the ``least dangerous'' 
branch--who are appointed for life, levying and raising taxes? Some 
people with whom I have spoken have asked me if judges can really do 
this. Well, they are doing it because they can. They can because 
Congress allows them to get away with it.
  What is judicial taxation? It is the act whereby a federal court 
orders a state or political subdivision of a state to levy or increase 
taxes. In Missouri vs. Jenkins (110 Sup. Ct. 1661 (1990)), the Supreme 
Court held that a federal court had the power to order an increase in 
state and local taxes. Specifically, the 5 to 4 majority ruled that a 
federal district court has ``abused its discretion'' by directly 
imposing a local property tax increase to finance implementation of a 
school desegregation plan for the Kansas City, Missouri school 
district. BUT, the court stated that ``[a] court order directing a 
local government body to levy its own taxes is plainly a judicial act 
within the power of a Federal court,'' and that the federal judiciary 
may also block enforcement of state law limitations on local tax 
efforts that interfere with the funding of constitutionally-based 
desegregation plans. This is an ``indirect'' tax. The dissenters in the 
Jenkins ruling criticized the direct versus indirect distinction as a 
``convenient formalism.'' However, the decision EXPANDED SIGNIFICANTLY 
THE POWER OF THE FEDERAL COURTS!
  Those who oppose attempts to curb this power claim that the Kansas 
City case is the only case where a federal judge, Russell Clarke, 
ordered a tax increase to finance the building of a magnet school 
system to make it more appealing. Similarly, judicial taxation took 
place two decades ago when federal Judge Leonard Sand forced the 
elected representatives of Yonkers, New York to raise taxes on their 
constituents in order to finance the construction of public housing in 
middle-class neighborhoods. In New Hampshire, the state Supreme Court 
decreed that local schools must be funded with a statewide tax in order 
to equalize spending per pupil across the school districts.
  In the congressional district I represent, Judge Michael P. Mahoney, 
the federal magistrate judge overseeing a desegregation case in 
Rockford, Illinois, concluded that the school district had authority 
under Illinois' Tort Immunity Act to issue bonds without referendum and 
to levy taxes to fund the remedial programs. Pursuant to this finding, 
the school district issued bonds and levied taxes from 1991 through 
1997 under the Tort Immunity Act. Although the Tort Fund is not subject 
to voter control and was originally intended to be used to pay damages 
to individuals in civil liability suits, the federal magistrate ordered 
its use. More recently, the federal magistrate again ordered each 
member of the school board under threat of contempt and jail to 
increase taxes. Following that threat in late 1997, the school board 
capitulated and approved the $25 million tort levy for that year. After 
the vote, School Board Member David Strommer said, ``It's a disgrace 
for an American public official to face this kind of pressure.'' Since 
1989, the city of Rockford, with a population of 140,000 people, has 
paid $183 million to comply with the court orders. That is a lot of 
money for such a small population, and that's for schools alone.
  All of these examples run counter to the intentions of the Founding 
Fathers. Our nation cannot allow its liberties to slip by the wayside. 
We have judges raising taxes. We have a regulatory body, the FCC, 
imposing a telephone tax. We have a Congress that doesn't believe this 
is a problem. Of these, it is Congress that is directly accountable to 
the people.
  So, what I have done legislatively to address judicial taxation? 
During the last Congress, I was able to insert a provision into the 
Judicial Reform Act. The provision was straight forward and was 
designed to severely limit the imposition of judicially imposed 
taxation. It would have applied to any order or settlement that 
directly or indirectly required a State, or political subdivision of a 
State, to increase taxes.
  My efforts to bar the federal judiciary from directly or indirectly 
raising taxes were defeated by a gutting amendment. However, in a sense 
we succeeded because this may have been one of the few times and 
possibly the only time in the history of our republic where the issue 
of Congress ceding taxing authority to the courts has ever been 
debated. Putting a halt to judicial taxation is NOT about 
desegregation, prison overcrowding, environmental law enforcement, 
housing, or what have you. It is all about abiding by the fundamental 
tenants of our Constitution.
  This Congress, I am focusing on a two-pronged approach. It is not 
going to be easy, but given the options, I believe that we have very 
few alternatives. I have introduced a joint resolution to amend the 
Constitution which reads simply, ``Neither the Supreme court, nor any 
inferior court of the United States, nor the court of any State in its 
application of laws under this Constitution or any Federal law, shall 
have the power to instruct or order a State or political subdivision 
thereof, or an official of such State or political subdivision, to levy 
or increase taxes.''
  The second approach, and this is very important, is through the 
states proposing a constitutional amendment. Currently, states cannot 
propose amendments to the Constitution without first the calling of a 
constitutional convention. However, there is a proposal--H.J. Res. 29--
which was introduced by Virginia Representative Tom Bliley that would 
allow for a mechanism by which the states could propose amendments to 
the Constitution without calling for a constitutional convention. I am 
a cosponsor of this resolution.
  Right now, as I understand it, 15 states have passed either a 
Resolution or a Memorial calling upon Congress to send to the

[[Page E1311]]

states for ratification of an amendment to the U.S. Constitution 
banning federal judges of inferior courts or the Supreme Court from 
having the power to levy or increase taxes. Those states include 
Alabama, Alaska, Arizona, Colorado, Delaware, Louisiana, Massachusetts, 
Michigan, Missouri, Nevada, New York, Oklahoma, South Dakota, Tennessee 
and Utah. As it stands, there are no teeth in those resolutions because 
there is no mechanism. H.J. Res. 29 would provide that mechanism. We 
should all be working to pass that amendment, as well.
  Levying taxes should remain a prerogative of the legislative branch. 
Thus, I will continue my efforts to stop judicial taxation.

                          ____________________