Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
Chief Justice Roberts opinion on ObamaCare "should be studied for years to come as lesson of how a judge can reach his result no matter what the legal materials with which he is working," says Randy Barnett at Volokh. One of the weaknesses of Roberts opinion is his incredibly superficial treatment of the ramifications of treating the individual mandate as a tax.
For starters, what kind of tax is it? The Constitution grants Congress "Power To lay and collect Taxes, Duties, Imposts and Excises," however any "direct tax" must be apportioned so that each state pays in proportion to its income.
Rob Natelson explains that the original understanding "was that direct taxes were imposed on status, while indirect taxes were imposed on transactions. A tax that one must pay despite doing nothing is the quintessential direct tax." But if ObamaCare's "shared responsibility payment" (ie, the penalty for not buying insurance) is a direct tax, then it must fail since it is not apportioned.
The Chief Justice treated this question superficially, citing for example, a founding era case in which the justices "asserted or strongly suggested" that the only "direct taxes" were capitation taxes and land taxes. I think it's worth challenging Robert's assumption here, but such a challenge might have to wait until the government starts collecting the payment in 2014.
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Comments:
May '10
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
The more I read about that stupid decision the more I get the impression someone had kidnapped Roberts' kids and was holding them for ransom. It's just so weird and completely illogical.
Mar '11
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
Thanks for bringing this up, Adam. There was a conversation two weeks ago on this point, and no one seemed to know which way was up regarding the direct tax question.
My question then and now was: does Roberts' decision make the mandate tax de facto constitutional, even if it doesn't comply with the requirements set forth in the Constitution for direct taxes? How do you relitigate something that has so explicitly been declared allowable - by arguing to the Chief Justice that he made a mistake in his reasoning?
Edited on July 11, 2012 at 7:35amMar '11
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
On the other hand, if a consensus emerges among legal scholars (at least conservative ones) that the mandate is an unconstitutional form of direct tax, then we have a new litmus test/campaign slogan for Mitt Romney:
Romney should promise that, as president, he will instruct the IRS not to collect the Obamacare tax starting in 2014 (if Congress has not already voted to repeal it) on the grounds that it is an unconstitutional form of taxation.
And we should put pressure on him to make this pledge.
Dec '10
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
Adam,
I think FeliciaB asks the right question. How could a man of Roberts credentials write a decision so inane.
I still have no answer.
Regards,
Jim
May '10
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
I haven't read the ruling, but I had assumed that the mandate wasn't a tax, but a tax credit. It would be a simple proposition to raise everyone's taxes (progressively of course) and allow a deduction equal to the tax hike for those who have bought the required insurance policies. That shouldn't make it any more illegal than Social Security.
What this really illustrates is how silly our system of deductions and loopholes is.
Jan '11
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
The Commerce Clause existed from the moment the Constitution was adopted, but the interpretation that it empowered Congress to regulate every area of life only arose in the New Deal. After Wickard, people started taking a longer look at the clause and many (certainly conservatives) argued that the broad interpretation simply can't co-exist with the notion of a limited government with enumerated powers.
Now, Chief Justice Roberts wants to argue that government doesn't have an unlimited right to regulate, but it has a virtually unlimited right to tax. Apparently the only limit is the idea that the tax has to serve a legitimate government purpose, which is a definition so elastic that it doesn't affirm or deny anything.
Just as it took a little time ... ahem ... to stuff regulation back into Pandora's box, we're now faced with the same process about taxation. Taxation can't be unlimited.
The United States found its initial spark when the English king asserted his prerogative to tax at will. You'd have to be ignorant of history to now claim that our Founders built that same prerogative into our Constitution.
May '10
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
Don't tax bills have to originate in the house of reps? Didn't obamacare originate in the senate?
Dec '11
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
I don't even understand how this is a majority opinion. As I understand it, the 5 "conservatives" all felt the mandate was unconstitutional as a part of the commerce clause, but the "liberal" justices were just fine with it as is. I'm not aware that anyone else saw it as a tax, so shouldn't the ruling should be 5:4 unconstitutional under commerce, 8:1 not a tax?
May '11
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
But is it an income tax?
The Obamacare Opinion said:
"In 1895, we expanded our interpretation to include taxes on personal property and income from personal property, in the course of striking down aspects of the federal income tax. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 618 (1895). That result was overturned by the Sixteenth Amendment, although we continued to consider taxes on personal property to be direct taxes. See Eisner v.Macomber, 252 U. S. 189, 218–219 (1920)."
That's because the Sixteenth Amendment expressly only applies to taxes on incomes. The Opinion does not expressly say this is a tax on incomes permitted under the Sixteenth Amendment. Rather, the Court appears to rely on the general taxation power. Why?
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
I think that severing the power to tax from the enumerated powers is the more serious issue here. It is obvious that the power to tax was, in the minds of the Framers, inseparable from the enumerated powers.
Why have a constitution at all if the power to tax is unlimited?
Nov '10
Re: Even If The Individual Mandate Is A Tax, It's Still Unconstitutional
I believe the scoring went 5:4 constitutional but 5:4 not under the commerce clause. Roberts was the only one who voted for the entirety of the final decision, but all nine were on board with at least part of it (though the four dissenters might not see it that way.)