Texas GOP Considers Turning State Into Tax Dodge Over Contraception Mandate


Last week Republicans in Texas introduced a bill that if passed and upheld, would turn the state into a safe-haven for corporate tax dodgers all in the name of religious liberty.

House Bill 649, introduced by Rep. Jonathan Strickland (R-Bedford) would give for-profit businesses like Hobby Lobby a state tax break if they chose not to comply with the birth control benefit in Obamacare. Under the rule businesses that refuse to comply with the mandate face up to a $100 penalty fine per employee per day. Strickland’s bill would allow those businesses to claim a state tax break for the amount it must pay in penalties, up to the total the business owes in its total state tax bill. In other words, Texans would subsidize for-profit businesses seeking to break the law.

It’s the kind of proposal that sells well in the with Tea Party politicians and will likely generate its fair share of “Don’t Tread on Me” copycat proposals. But in addition to being astonishingly bad state fiscal policy, the proposal stands on extremely shaky constitutional footing.

While we devote a lot of time to the “rights” protected by the Constitution, the document is at its core a power-sharing arrangement between the states and the federal government motivated in large degree to managing commerce. That means that, tax laws generally and state tax schemes specifically, bring up important and complicated issues of federalism. Which may be too bad for Texas Republicans.

To be considered constitutional, a state tax generally cannot discriminate against interstate commerce. Broadly speaking, the Supreme Court has taken that to mean that any tax which, by its terms or operations, imposes greater burdens on out-of-state goods, activities, or enterprises than on any competing in-state goods, activities or enterprises violates the Commerce Clause and will be struck down. The basic logic of this conclusion is pretty clear—states shouldn’t be able to simply preference their own industries at the expense of others if those industries touch or are part of national commerce.

This gets more complicated as state tax schemes get more complicated. In the case of a state tax incentive, like the one proposed in Texas, the Court has not been clear as to the scope of this prohibition, and, if carried to its logical conclusion, every state tax incentive would be considered unconstitutional. So the question then becomes, what do we do with this one?

Strickland characterizes the bill as a haven for employers like Hobby Lobby who refuse to comply with the mandate based solely on the religious convictions of the owners. However the federal courts have already shown an inherent skepticism to the claim that an individual’s religious beliefs can transcend the corporate form as a matter of course and thereby grant all corporates religious liberties. So while there may be a flood of litigation by corporations trying to evade the mandate, there’s no guarantee they will. In that case Strickland’s bill is little more than political theatre designed to give employers like Hobby Lobby additional political cover as it tries to negotiate a settlement with the Obama administration or continue its legal challenge.

By effectively offering to waive state corporate tax liability in exchange for intentionally disobeying federal law, Strickland’s proposal is also another example of lawmakers in the state arguing to extreme their power under the 10th Amendment. Much like the “states rights” challenges to Obamacare generally, the purpose of these arguments are not simply to advance an immediate legislative agenda or legal challenge but to shift ever-rightward the national framing of state and federal power. That shift is reflected not just in our national conversation over reproductive health care, but in the jurisprudence as well. After all, it’s such a shift right that made the end of the Texas Women’s Health Program a reality.

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