My Initial Critique of the Individual Mandate Decision

We have been having technical difficulties that make it almost impossible for us to post on this site. I apologize to our readers.

However, I have posted an initial critique of the Court’s decision as an op ed for the New York Daily News, here:

Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate shows that the Supreme Court takes constitutional limits on federal power seriously – but not seriously enough. As a result, Congress now has the power to impose a mandate to do almost anything, so long as it is structured as so-called “tax.”

That ruling both misreads the Constitution and gives Congress a dangerous new power.

Although he cast the deciding vote to uphold the mandate, Chief Justice John Roberts actually rejected the federal government’s main argument for the law: that the mandate is authorized by the Commerce Clause, which gives Congress the power to regulate interstate commerce….

Why then did Roberts vote to uphold the law? Because he concluded it is a “tax” authorized by Congress’ power to impose taxes under the Tax Clause. In doing so, he endorsed an argument rejected by every lower court ruling that addressed it. He also rejected the views of President Obama and numerous congressional Democrats, who repeatedly assured us that the mandate was not a tax. As the President put it in 2009, “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”

The President was right and Chief Justice Roberts is wrong.

Roberts argues that the mandate is a tax because it imposes only a monetary fine on those who fail to comply, the fine does not apply to people too poor to pay income taxes, and that fine is collected by the IRS. As he admits, calling this a “tax” is not the “most natural interpretation” of the mandate. The law refers to the fine as a “penalty,” not a tax. And the Supreme Court has repeatedly distinguished between taxes and penalties, defining the latter as “an exaction imposed by statute as punishment for an unlawful act” or omission.

The health insurance mandate imposes a fine as punishment for the unlawful refusal to purchase government-mandated health insurance. The chief justice writes that this is not a penalty because “the mandate is not a legal command to buy insurance,” but merely a requirement that you pay additional money to the IRS if you refuse to comply. Failure to purchase health insurance, is therefore, not really “unlawful.”

This distinction is hardly persuasive. Is speeding not really unlawful if the penalty for it is a fine payable through the IRS?

Pretty much any other mandate could be magically converted into a tax by the same sleight of hand…

Fortunately, today’s decision is not the end of the debate over the scope of federal power. The Supreme Court remains closely divided over these issues, and there is clearly no consensus on the question of how far Congress can go in controlling our lives. Future cases could limit the harmful effects of today’s ruling or even someday reverse it entirely.

I will be posting a more detailed reaction at SCOTUSblog soon.