Some have argued that it does not matter whether the individual mandate is a constitutional exercise of the power to regulate “commerce . . . among the several states” because the mandate — or, more properly, the penalty for failing to comply with the requirement to obtain health insurance — is within Congress’ power to tax. But is this so? Steven J. Willis and Nakku Chung of the University of Florida have a forthcoming article in Tax Notes in which they argue that if the penalty is a tax, it is a “direct tax” for purposes of Article I, section 9 and is therefore unconstitutional. Specifically, they argue that the tax is neither an income tax nor an excise tax, nor a proportional capitation tax, and is therefore not a constitutional exercise of the federal taxing power. (Hat tip: Lawrence Solum) [...]
University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most “Federalist Society types” have been consistent about over the years, it’s judicial enforcement of, well, federalism. For years, many of us have repeatedly argued for stronger judicial enforcement of the limits to Congressional power under the Commerce Clause and the Tax and Spending Clause, the two provisions most commonly cited as constitutional authorizations for the Obama health care bill. That’s why we defended decisions such as United States v. Lopez and United States v. Morrison and decried cases such as Gonzales v. Raich.
For example, I’m a member of the Society and also sit on the Executive Committee of its Federalism and Separation of Powers Practice Group, the branch of the Society that most directly focuses on these issues. I’m also a constitutional law scholar who writes extensively on federalism. And I have consistently argued for strong judicially enforced limits on congressional power in both fields, including with respect to policy initiatives favored by Republican administrations, such as the War on Drugs, the federal ban on partial birth abortion, and others. Most of the other people who are members of the Practice Group leadership hold at least roughly similar views to mine on these issues. The same goes for the majority of the Federalist Society-affiliated conservative and libertarian scholars who have written on these matters for the last 15-20 years or longer.
On these questions, as on many others, there is a diversity of opinion in Fed Soc circles and [...]
As I discussed in this post, some academic defenders of the health care bill’s insurance mandate claim that it is constitutional as an exercise of Congress’ power to tax. That argument has been advanced by by prominent scholars such as Jack Balkin, Vik Amar (in a recent debate with me), and others. It may therefore be of some interest that President Obama, himself a former constitutional law professor, forcefully denied that the mandate is a tax in this September 2009 ABC News interview:
[George] STEPHANOPOULOS: …Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?
OBAMA: Well, hold on a second, George. Here — here’s what’s happening. You and I are both paying $900, on average — our families — in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that’s…
STEPHANOPOULOS: That may be, but it’s still a tax increase.
OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the