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

This summary of Ilya Shapiro's "The Christmas Tree Tax Is a Microcosm of What's Wrong with Constitutional Law" comes via the National Center for Policy Analysis. I've posted about this on Facebook, but like the angle Shapiro takes - and the very valid questions he raises about the idea.

On November 8 the U.S. Department of Agriculture (USDA) gave the OK to a new industry-funded Christmas tree promotion program, but says it is not a tax. The program was quickly postponed by the Obama administration after public outrage. But this still says something about the federal government and the state of constitutional law as a whole, says Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute.

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, do we want courts drawing lines between, say, crèches/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, USDA 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 promote the general welfare or common defense?

* The administration cites the Commodity Promotion, Research and Information Act of 1996, under which the 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?

This is a microcosm of what's wrong with constitutional law, evermore divorced from the Constitution as it is, says Shapiro.