Repealing Obamacare: The Roberts Irony

Obamacare opponents dismayed about John Roberts’s opinion in the Supreme Court case that upheld Obamacare’s individual mandate — and therefore Obamacare itself — may have occasion to do a rethink. The ruling, it turns out, may not be the saving grace that Obamacare supporters thought it was. Indeed, the very opinion that Obamacare supporters praise may, ironically, be the opinion that kills Obamacare for good.

Recall that the Supremes did, in fact, rule the individual mandate unconstitutional as a penalty. Recall, also, their concomitant ruling that the Constitution’s Commerce Clause did not empower the federal government to force every American to purchase a product in the private market by virtue simply of being alive.

Nevertheless, according to the Roberts opinion, the individual mandate survived its constitutional challenge as a tax. More important, according to Roberts, it survived only as a tax.

It also, ironically, precisely because it is a tax that the individual mandate is unconstitutional, as the Cato Institute’s Michael F. Cannon notes in his article in today’s Los Angeles Times (emphasis mine):

The Pacific Legal Foundation is challenging the individual mandate, which originated in the Senate, even though the Constitution requires that tax measures originate in the House.

Note also the language of the 16th Amendment (emphasis mine):

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

In other words, the 16th Amendment carves out a special exemption from the Constitution’s requirement that taxes “shall be apportioned among the several States.” For any tax that is not an income tax, the Constitution’s original language applies and thus, per Cannon:

The mandate is also vulnerable because it is not uniform across all states.

One hopes that some of the anti-Obamacare states will take up the Pacific Legal Foundation’s argument and file their own challenges, or at least file amicus curiae briefs in the Foundation’s case.