Tag: christmas trees

The Christmas Tree Tax Is a Microcosm of What’s Wrong with Constitutional Law

Jim Harper beat me to the punch on the new Christmas tree tax – probably because I initially thought it was a joke – but there’s actually much more to say here beyond the USDA’s claim that it’s not a tax and the general absurdity of the situation.  Three quick things:

First, there are obvious Free Exercise and Equal Protection issues here.  That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces.  Even if it might be reasonable to see Christmas trees as not particularly religious – pine trees played no role in The Greatest Story Ever Told and, e.g., my secular Jewish family always had a traditional Russian New Year’s Tree (which has no ties to Russian Orthodox Christianity) – but do we want courts drawing lines between, say, creches/crucifixes and trees/Santa?

Second, and probably even more important given the times in which we live, where in the Constitution does the federal government get the power to tax the sale of a local agricultural product?  Setting aside trees trucked in from out-of-state, there’s no interstate commerce here to regulate.  And if it’s a tax (which, again, Ag officials deny) – presumably an excise, which is specified in the Constitution and which courts have construed to be a tax on transactions or privileges – how does assessing it to promote the general welfare or common defense?  The administration cites the Commodity Promotion, Research and Information Act of 1996, under which the tax mandatory fee funds a new program to ”enhance the image of Christmas trees and the Christmas tree industry in the United States.”  That’s what passes for the general welfare? 

Third, even if the tax is a lawful use of federal power, shouldn’t Congress be the body levying it, rather than an agency of the USDA?

I could go on, but this little 15-cent tree tax is a microcosm of what’s wrong with constitutional law, evermore divorced from the Constitution as it is.  Yes, under modern doctrine, the Christmas tree tax can be probably justified under either the Commerce Clause or the General Welfare Clause – and Congress can delegate to bureaucrats the power to levy certain “assessments” – but is that the kind of government we signed up for?

h/t Cato legal associate Chaim Gordon

Yes, Virginia, There Is a Christmas Tree Tax

Via Heritage’s “The Foundry” blog (and the outraged Facebook posts of former Cato interns), behold the Christmas Tree Tax.

It’s an announcement from the Agriculture Department’s Agriculture Marketing Service that it will be levying a fifteen cent tax on Christmas trees, payable to a new “Christmas Tree Promotion Board.” The tax will raise about $2 million from Christmas tree farmers and importers directly. That money comes indirectly from you.

As noted at The Foundry, the Ag Department claims the fifteen-cents-per-tree “assessment” is “not a tax nor does it yield revenue for the Federal government.” This claim fails both informal and formal analysis.

Informal: Do Christmas tree farmers go to jail if they refuse to pay? Yes. It’s a tax.

Formal: Is it a “non-penal, mandatory payment of money or its equivalent to the extent such payment does not compensate the Federal Government or other payee for a specific benefit conferred directly on the payer”? Bingo. Tax.

The formal definition is from the Taxpayer’s Defense Act, a bill I helped write while a congressional staffer after carefully researching the distinction between taxes and other government revenues, such as fines, legitimate fees, and such.

The Taxpayer’s Defense Act would have barred agencies from establishing or increasing taxes without first getting Congress’ approval. The idea was simple: No taxation without representation. And that idea is violated by the Agriculture Department’s new Christmas Tree Tax.