Friday, September 26, 2014

Shall We, Under the Constitution, Govern Ourselves? Or, Shall We Be Ruled Under Tyranny?

 (This is Part II of a Blog evaluation of the recent federal appeals court decision holding that the tax imposed for failing to purchase health insurance did not violate the Origination Clause of the Constitution. You can read Part I, in which the decision is summarized, here.  Here, I raise old questions about the nature of our government and about the existence of a putative duty of citizens to respect decisions of a federal court that purport to interpret and apply one of the fundamental documents of the Nation, the United States Constitution.)

As previously explained, the DC Circuit has rejected a constitutional challenge to the tax imposed by the Patient Protection and Affordable Care Act.  That challenge asserted that the tax violated the Origination Clause of the Constitution because the legislation imposing it originated in the Senate, rather than the House of Representatives.  In my previous post, I concluded:  “For now, it would seem that the Origination Clause theory is in trouble.”

Perhaps it is in bad form to open a conversation with a litany of questions.  Nonetheless, we face the consequences of a lazy Congress, a tyrannical president, and an unhistorical court decision.  A few questions are, I think, a good way to frame our circumstances.

Should the Origination Clause challenge to the tax imposed for failing to purchase health insurance fail?

Should the decision of three appointed judges bind a Nation and its People to their determination of these intertwined issues?

Should the Origination Clause be understood to apply only to those bills about which the Congress entertained “raising revenue” as its animating purpose and intention? 

These questions, how we examine them, how we answer them, decide more than the constitutionality of the Act.  Rather, what we say about these questions, the principles we bring to bear on them, reveal much about how we, as a People, have progressed under the Constitution, how we have learned the lessons of the setting up of, and governance of, our Nation.

Are we bound to bow to the conclusions reached by three judges in this matter? Do a federal court’s neat machinations around the Origination Clause literally command the heartfelt obedience and respect of us all?  To that decision, as free people under this Constitution, do we owe some kind of fealty?

The answer to each of these questions might be “yes,” but I think the proper answer to each is “no.”

By saying “no,” I join Abraham Lincoln in rejecting a judicial power to set policy for the Nation, and in rejecting the notion that construction and interpretation of the Constitution is the sole province of the Judicial Branch.

In his First Inaugural Address, Lincoln concluded that the Supreme Court, if its decisions resolved questions of national policy conclusively, would supplant the People as their own governors.  As a People, have we actually come to the place that Abraham Lincoln forecast over 150 years ago?  Then, as the nation reeled from its battles over regulation or prohibition of slavery and over the legal theory of secession from the Union, the Supreme Court took a swipe at the policy-making and legislative power of the People, exercised through the Congress, when it decided Dred Scott versus Sanford

Dred Scott had lived most of his life in the service of a military doctor and his wife. In the course of that service, Scott had lived in States that recognized the right to own slaves and in States that prohibited slavery and rejected the idea of ownership of one man by another.

In Dred Scott, the Court rejected Scott’s claim that, because he had resided in Free States while under the ownership of his master, he had, in fact, become a free man.  So, in essence and in fact, the Court rejected Scott’s claim to freedom.  The Supreme Court -- ever the beacon of human rights and liberty -- concluded that Africans in America were not citizens of the United States, could not, in fact, be citizens of this Nation.  Consequentially, the Court concluded that Scott lacked standing to sue in federal court.  On the substantive question, the Court concluded that restrictions on owning and importing slaves -- imposed on federally administered territories prior to their admission to the Union as States – had been beyond the power of the Congress to impose. 

The upshot of the matter:  Scott’s case was dismissed.  More importantly, the decision resolved two important questions of constitutional construction.  As a consequence important policy questions arising from the dispute among the States over slavery were, seemingly, placed beyond the power of the People, through their Legislatures, to address.

That result, of great moment to People who would govern their own affairs, inspired Lincoln’s observation of an eminent tribunal, the Supreme Court, displacing the People in the affairs of policy making.  In his Address, faced with resolutions of secession and threats imminent to federal offices and officers within the Southern States, Lincoln would not avoid addressing these same central issues of policy purportedly put beyond republican amelioration by the Dred Scott decision.

Lincoln observed the none-too-subtle shift of the locus of power accomplished by settling upon the Court a legitimized power to impose policy by simply deciding case: 


I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Lincoln observed, in its deciding of Dred Scott, by arrogating to itself the power to interpret the Constitution as its exclusive province, the Supreme Court denied to the Congress a power to regulate slavery in federally administered territories.  In doing so, it stripped the People of the United States of the power to be their own governors in this particular.  Thus, as he said, to that extent the People will have surrendered that power into the hands of that “eminent tribunal.” 

Lincoln, ever a gentleman, did not call out the justices of the Court as fabricators.  In fact, his address portrays the Court as having no choice in the matter but to decide the cases before it:  “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”   Without imputing to Honest Abe a lack of candor regarding his views on the Court’s obligations, his words suggest a mechanical, preference-free, dispensation of justice.  Lincoln’s caution in the moment has not restrained others to make more candid observations.

Mark DeWolfe Howe, attorney and historian, rendered one of the most disturbing indictments of the Supreme Court’s decision making process with which I am familiar.  Howe, lecturing at Harvard Law School, responded to the Court’s decisions on religion and the law.  The lectures, given in the early 1960’s, became the basis of his book, “The Garden and the Wilderness.” As Howe set the stage for his exploration of the Court’s Religion Clause cases, he first addressed the roles played by the justices in deciding cases. 

Of course, their principal roles were as judges of the Nation’s highest tribunal.  In reaching their decisions, Howe noted, the justices often also took on the role of historians.  In his view, however, the justices as historians often subverted history in service of intended outcomes. 

Howe began his consideration of the Religion Clause decisions by demonstrating that the Court’s choice to pick a metaphor – the wall of separation between church and state – was, in fact, the Court’s choice to pick an outcome.  More, by focusing on Jefferson’s Wall of Separation, the Court put its historical and juridical focus on the history of the struggle for religious freedom in Virginia. By doing so, the Court imported to the meaning of the Religion Clause the peculiarities of Virginia’s struggle.  Indeed, the Court vaunted the Virginia struggle for religious liberty over every other possible source of meaning for the Religion Clauses.

Howe examined the intersection of those two roles played by Supreme Court justices:

Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related.  The one is the power, through an articulate search for principle, to interpret history.  The other is the power, through the disposition of cases, to make it.  Phrased somewhat differently, the contrast which I have in mind is that between the scholar’s capacity to conduct a groping search for past even and initial purpose and the statesman’s talent for making the decisive choice of a rule of conduct which he believes to be suitable for the government of the future.

Howe suggests that a justice may be a scholar and a statesman of a kind, but that, in rendering decisions, the risk is real that a justice can, in fact, become a policy-maker designing our lives under the framework of law.  He continues:

It is the common-law tradition, perhaps, which leads the Court and those who study its processes to assume (or had I better say “pretend”?) that the history which is made by the Court’s decisions is merely the realization of the past which the learning of the justices and their clerks has uncovered.  The judge as statesman, purporting to be the servant of the judge as historian, often asks us to believe that the choices that he makes –the rules of law that he establishes for the nation—are the dictates of a past which his abundant and uncommitted scholarship has discovered.

From these thoughts, Howe contemplates that a reasonable reader will have sensed in his words doubt of the Court’s adequacy in interpreting our nation’s history.  If the reader has done so, Howe explains, it is likely the product of the reader realizing the intention of the writer:

I believe that in the matters at issue the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision.  By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.  Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely “legal history”—the story, that is, of the law’s internal growth and development.  When, however, the Court endeavors to write an authoritative chapter in the intellectual history of the American people, as it does when it lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.

That is, indeed, a telling indictment of Supreme Court decision-making processes in the Religion Cases from the late 1940s forward.  The indictment applies, I think, with equal weight to Judith Rogers’ opinion for the DC Circuit on the Origination Clause, and her application of her construction of the Origination Clause to Matt Sissel’s challenge to the tax imposed under the individual mandate.  

There is no clause of the Constitution assigning to the Supreme Court the power or duty to construe the Constitution in a manner conclusive of constructions given to that document by the Congress or by the President. If you doubt it, read Article III of the Constitution for yourself. Today, of course, few dispute the Court’s pre-eminent authority to do so, even in the absence of an express designation of such a duty or power.  That outcome might have surprised some delegates at the Constitutional Convention of 1787, but would not have surprised Alexander Hamilton, the author of the Federalist No. 78.

Although the delegates to the Constitutional Convention agreed to conduct their sessions in secret, several attendees took notes, and a number of speeches, in addition, were rendered from written manuscripts.  Together the notes and speeches give us the opportunity to listen in as the Convention considered how to make “a more perfect Union.”

Early in the Convention, James Madison’s proposal, “The Virginia Plan,” was offered for the consideration of the delegates then present.  Among the points proposed was one to create a council that would, essentially, sit in judgment of congressional acts to determine their constitutionality and wisdom.  This text explains the point proposed:


Note that Madison expressly proposed including members of the federal judiciary on a Council to provide a pre-operative clearance for federal legislation. This proposal was rejected, not just once, but on three separate occasions.  The only provision of the Constitution that approached it was the grant of the veto power to the Executive, itself subject to override by two thirds votes of each Chamber of the Congress.

Unfortunately, for truth and for history, the delegates to the Constitutional Convention pledged themselves to secrecy regarding their proceedings.  As a consequence, no general awareness existed amongst the People and the States that this idea – a “super-legislature” that could sit in judgment of the constitutionality of the Acts of the Congress and the laws of the States – had been rejected three times in the considerations of the Convention.  Despite the rejection of the idea of a “council of revision,” delegates did argue that the structure of the Constitution supported the notion that the federal courts would have authority to decide such questions of constitutionality, and the idea of such a power was also the subject of debate in the Ratification Conventions of the States.

I would not want to leave you with the notion that this power, the judicial power to declare an act of Congress void, or to interpret the meaning of the Constitution, was novel and never considered by the Convention that framed the Constitution, or the State Conventions that ratified it.  Rather, it is sufficient to note that there is a history to this question of the power of constitutional interpretation, and to note that wiser minds than mine have disputed that it is the sole or exclusive province of the Courts to do so.

Beyond the veil of secrecy for the Convention, there was also the campaign of propaganda related to the debates in the States over ratification.  That propaganda war, principally consisting of published letters by opposing factions of Federalists and Anti-Federalists, served to educate the People as to the proposed meaning of the Constitution, its purpose, its strengths, its weaknesses and its dangers. 

One Constitutional Convention delegate, Robert Yates, took the Antifederalist position during the debates of the States on ratification.  In his eleventh essay opposing the Constitution, writing under his nom du plum “Brutus,” explained the danger of depositing the sole power of construing the Constitution in the Judicial Branch:


Arguing for the Constitution, and seeking to mollify fears that a power of judicial review would make the Judicial Branch central and powerful to the federal government, Alexander Hamilton expressed the view that, to the contrary, the Judiciary would least likely present threats to the rights and liberties of the people:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the 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 judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Among those wiser minds, in addition to Lincoln, and delegate Robert Yates, Jefferson is particularly notable.  His thoughts on this power of the judiciary and his conclusion of its danger to self-government he expressed in a letter to William Jarvis, written in 1820.  Jarvis had provided to Jefferson a copy of his book, “Republican.”  Having given the book a cursory examination initially, Jefferson chose to address the question of the power of judicial review in his letter of appreciation for the book.  He wrote: 




Still, while maintaining the respect of those who studied the records of the Convention, of the Ratification Conventions and of the public dialogue of the Federalist and the Anti-Federalists, one could yet hold the view that the Judicial Branch did not own the Constitution, nor possess the sole power to construe it, nor the power to declare the Acts of the Congress or of the State legislatures null and void. Ultimately, such a view notwithstanding, the Supreme Court, in a series of decisions, arrogated to itself the power to interpret the Constitution as the final arbiter of its meaning, and the powers to declare federal and state laws unconstitutional.

Professor Howe, in the lectures mentioned above, nonetheless counsels us that we are not the mere pupils of a history drafted and crafted by judges.  Instead, as to the general history of our People, of our government, and of our founding, we have judgment equal in significance to that of judges.  What remains, then, is for we, the People, to consider whether Judge Judith Rogers and her colleagues correctly construed the Origination Clause and correctly applied that Clause to the challenge to the individual mandate penalty under Obamacare.

Wednesday, September 10, 2014

Obama vs. Ft. Bliss: Scratch Golf Pursuit Produces Leaky Border Syndrome

I remember laughing, while shopping at Walmart back in 2012, when I read the warning label on a dietary aid, which advised that a possible side effect was "leaky bowel syndrome."

Obama has given our nation something worse than "leaky bowel syndrome."  After all, with LBS, you just gotta get hooked up with some Depends, or a similar product.  But with Obama's version of LBS -- Leaky Border Syndrome -- you get a full-on invasion of unchecked magnitude and nature.  Worse, while there are, undoubtedly, many coming into the nation of general good will, seeking a better future, because the flood is unchecked and without discretion, there is the grave, imminent and perceptible danger that those of fixed ill and evil intent also flow into the Nation.

One consequence of Obama's Leaky Border Syndrome is the high alert status at Ft. Bliss, in El Paso, Texas.

This matters to me for more reasons than the very personal ones of family members stationed at, or living aboard, the base.

This matters because our Nation's liberty is often held captive to our Nation's security.  Even as long ago as the Civil War, when Lincoln unconstitutionally suspended Writs of Habeas Corpus, that connection was patent.  When opponents of government actions (or inactions, as is the case with the First Golfer) speak truth to power, national security is often the first refuge of officious bureaucratic scoundrels who would repress political expression.

Obama does not govern in the sense of a wise, tending, gardener caring lovingly for a treasured secret garden.  Instead, he is very like that gardener described in the parable of the wheat and tares.  Not the farmer that planted the crop of wheat, Obama is the sower of tares in the garden that is our Nation.  His plea for "hope and change" was never founded on a plan for "hope and change."  He never has had, currently has not announced, and shows no sign of a forthcoming plan for "hope and change."

Instead, his seeds are ones of discontent, race-baiting, class warfare.  But just like the sower of tares in the parable, his labor was brief and then his future involvement in the garden nonexistent.  Obama's promise, in that Chicago speech following his 2008 election, promising change, marked the end of any actual tending of the American garden by this President.  He saw a field ready for planting, due to the war weariness of eight years of turmoil following the terrorism of 9/11, and the fomented discontent kept at a low boil by a media that makes no bones about its leftist bias.  And where others had tended the American garden with a view toward continuous growth and improvement, Obama spread his bogus "hope and change" over us all.

Now we live under the poor husbandry of a man who would be a scratch golfer, but who will not commit his labors, his time, his thought, to securing the Nation from external and internal dangers. And this is Obama's crime, as evidenced by the required security elevation at Fort Bliss in Texas: utter, complete dereliction of duties.  It remains to say only this:  there is no chance that Obama will be taking a blue ribbon in the State Fair, unless they start offering prizes for best grown weeds.

Saturday, August 30, 2014

Origination Clause Challenge to Individual Mandate In Trouble ... For Now?

Among the stunning features of the Patient Protection and Affordable Care Act, “Obamacare,” is its requirement that every American purchase health care insurance. That requirement, the individual mandate, marked the first time in US history that Congress ordered the American people to purchase a product that, previously, they had been free to buy or to reject.  The outcry was immediate, and led to a turnover in Congress to Republican leadership in the House of Representatives.

Challenges to the individual mandate were immediate.  Multiple legal theories supported the challenges.  

Thus far, the Supreme Court has taken two turns at examining the Act, or parts thereof.  Last year, a bare majority held that the individual mandate under the Act, which could not be justified as an exercise of the Commerce Clause power, was, instead a tax.  Then, just weeks ago, as the 2013 Supreme Court ended, the Court held that the mandate for corporations to include prescription coverage for their employees for abortion-inducing birth control violated rights under the federal Religious Freedom Restoration Act.

Still other challenges to the Act are moving forward in other courts.

Among constitutionalists, much hope has been invested in legal challenges based on two separate strains of legal theory.  One approach seeks to bring about an implosion of the Affordable Care Act by stripping out federal tax credits to fund premiums for low income applicants; those credits are authorized in States that set up exchanges, but not in the 36 States that did not do so.  An IRS rule-making extended the credit in those States despite the lack of authorization for such an extension.  I have previously posted on two recent, conflicting decisions addressing this approach.  

An entirely separate approach, born of a search within the Constitution for the underpinnings of the power to impose a federal tax, has challenged the enactment of Obamacare because it originated in the Senate, rather than the House of Representatives. That, if true, may mean that when the Democratic Party-controlled Congress enacted Obamacare, it violated the Origination Clause the US Constitution.  The Origination Clause states:  “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.”  US Const. Art. I, sec. 7. 

Litigation raising the Origination Clause argument against Obamacare has been pending in the Nation’s Capitol for some time now.  Matt Sissel, the plaintiff, claimed that, because the penalty for failing to purchase health insurance is a tax, the Origination Clause required that the House of Representatives originate the legislation.

Obamacare, however, was an invention of the Senate.  In fact, the Democrat-controlled Senate took a pending House bill – one regarding tax credits for home ownership by members of the military -- stripped out every jot and every tittle of it including its title, and inserted the Affordable Care Act in place of its original text and title.  This, on Capitol Hill, is called an amendment in the nature of a substitute.

Neither a Nation nor its people, nor their hopes, aspirations, dreams, labors or relationships should be governed by the whim of gamesmanship.  Yet, with courts at the crux of decisions about the legality of laws like Obamacare, crucial decisions often resemble a group of judges arguing over number placement in Sudoku or attempting a “group solve” on the daily crossword.  Not to put too fine a point on it, attorneys whose careers depend on appearing before the Supreme Court and federal appellate courts understand how these word games are played and craft their arguments to the tune of such judicial gamesmanship.

Now, however, a decision from the US Court of Appeals in WashingtonDC, spells trouble for those who have held the hope that a faithful application of the Origination Clause to the mandate would lead to a decision striking down that provision, and perhaps, the entire the Patient Protection and Affordable Care Act.  Because the meaning and application of the Constitution is the right of every citizen to discern and the duty of every federal official to respect, a decision that gives meaning to, or applies what it claims is the settled meaning of, a provision of the Constitution, the Court's decision should be thought important by every man.

Matt Sissel, an artist, small-business owner and National Guardsman, simply thought that such a signal shift in policy and law, if it were to be forced upon the people, ought to be accomplished within the bounds of the law and the Constitution. Sissel's view is, I suppose, perceived as unreasonable by those who pushed the Affordable Care Act through Congress.  Such denizens of social manipulation and control take affront when we, who prefer to do so, manage the affairs of our lives free of government mandates. For them, it was entirely reasonable to enact legislation, while candidly admitting that they had to pass the bill to know what was in it. That reasoning hardly inspires confidence that legislators are, in fact, comporting themselves within constitutional boundaries.
Judith Rogers, a Bill Clinton appointee to the DC federal appeals court, joined by two recent Obama appointees, evaluated Sissel's theory that Obamacare violated the Origination Clause.  Faultless, the court responded, was Sissel's assertion that the legislation had, in fact, originated in the Senate, rather than the House.  Faultless, the court responded, was Sissel's assertion that the individual mandate imposed a tax. Of course, Judge Rogers deserves no particular credit on that score given the Supreme Court's previous Obamacare decision by Chief Justice Roberts holding that the mandate was, in fact, a tax.

The appeals court concluded, however, that even though the BILL ORIGINATED IN THE SENATE and even though the BILL IMPOSED A TAX, it was not, as the Origination Clause language states, a "bill[] for raising Revenue."  The court concluded that, while it was true that the tax would, in fact, raise revenue for the federal government coffer, the purpose of the entire Act, and the purpose of the mandate's tax, was, rather than raising revenue, to address the policy and law on health care insurance in the United States. Thus, while revenues will flow in to the government under the Act, because that was not the motivation of the entire act, the court reasoned, the Origination Clause challenge to it failed. 

Clever and conclusive, the decision abides what it must, the Supreme Court's conclusion that the penalty for failing to purchase insurance is a tax, admits what it cannot deny, that the bill originated in the Senate rather than the House and that it imposes a tax rather than a penalty, and then claims a ground of construction of the Constitution allowing it to dispose of Sissel's claim.  

For now, it would seem the Origination Clause challenge to the individual mandate under Obamacare is in trouble.


This post is the first of three on the topic of the Origination Clause, the Sissel litigation, and Obamacare. Parts two and three will follow shortly.

Saturday, August 9, 2014

Postal Service Announces Operation Junk Mail Saver

Thanks to coverage on NBC's Today Show and other broadcasting sources, some Americans may believe that postal employees are irresponsibly throwing deliverable mails in dumpsters to ease their route delivery work.  In response to the adverse publicity, the Postmaster General today revealed that the recently, and widely, released surveillance video instead reveals a bold new Postal Service initiative.

JIMSMIND, NC (August 8, 2014)--USPS today confirmed its implementation of "Operation Junk Mail Saver." 

Postmaster General Frank Donahoe announced today the inaugural test of its latest customer courtesy initiative, "Operation Junk Mail Saver." "Ladies and gentlemen, we at your US Postal Service know too well the inconvenience and clutter that results from receiving dozens of advertiser mailings and circulars each week. We have heard your cry and have developed a unique program that combines the maintenance of a high value income stream to your Postal Service while alleviating the taxing tasks associated with reviewing and disposing of unwanted mail."

Although the initiative was not intended to be made public until studies were complete, Donahoe explained his decision to come forward with word of the program when a local news reporter broadcast surveillance video showing one test of the program being conducted by an Austin, Texas participating Post Office:

"I'm sure that, not knowing that this disposition of mailings was intentionally done as part of this customer courtesy initiative, many would assume that the news reporter's video showed a criminal act of postal negligence. Nothing could be farther from the truth. We have highly developed algorithms that have been developed to calculate the likelihood of any individual piece of mail actually being of interest to a Postal Service consumer.

The Postmaster General confirmed that Operation Junk Mail Saver was part of a larger package of initiatives designed to improve service efficiencies and conveniences.  "As you are aware, another aspect of the program in which the Operation Junk Mail Saver was the initiative to spare postal customers the difficult and tedious task of opening, evaluating, and responding to, package deliveries."  In that instance, Operation What Granny Don't Know Won't Hurt Her had come to light last month during initial testing of that program.  In Operation What Granny Don't Know, the Postal Service disposes of shipped packages that are anticipated not to be of use, or meaningful to, our customer base.


"This isn't the Postal Service of dear old Ben Franklin, friends. We have employed the latest technologies and consumer sciences to preserve this Service as a method of bringing unwanted mailing to the homes of over 300 million Americans. This initiative allows us to continue to sell bulk mailing opportunities to unsuspecting merchants and small businessmen, while sparing consumers of the ugly task that actual delivery of unwanted mailing would impose on them.

"As we roll this initiative out across the country, it is our hope, eventually, simply to take money from America's small businesses and merchants while providing absolutely no value in return at all."
Donahoe did not respond to a reporter's question as to whether that goal -- taking money and not providing anything in return -- was, in fact, the definition of taxation.