Barack Obama claims that the individual mandate to purchase health insurance is not a tax. If he is right, he may be dooming a central piece of the health care reform making its way to his desk.
Critics of the Obama administration say that the individual mandate—the rule requiring individuals to purchase health insurance or face stiff penalties—is a regressive tax that will hit the middle classes on whom he promised not to raise taxes. Obama says it isn’t a tax at all.
But if we accept Obama’s argument that it isn’t a tax, the individual mandate is likely to be unconstitutional. Under current Supreme Court precedents, the government enjoys wide latitude when it comes to exercising its taxing authority. Indeed, there may be nothing left at all of barriers to taxes other than something that could be viewed as a bill of attainder. Any generally applicable tax probably passes constitutional muster.
If the Court accepts the president’s argument that this isn’t a tax—and such arguments will likely be very persuasive to the Justices who accept legislative history and legislative intent when deciding cases—the constitutionality of the individual mandate will depend on the interstate commerce clause. And here is where the trouble begins.
The most famously expansive view of Congressional authority under the interstate commerce clause came in Wickard v. Filburn, where the Court ruled that Congress could restrict wheat grown by a farmer for consumption by his own chickens because it enabled him to forego the interstate grain market. Supporters of the individual mandate will likely point to this precedent—and subsequent cases upholding it—as showing that Congress can regulate those who wish to avoid a market as well as those participating in it.
But in Wickard v. Filburn, there was at least a potential nexus between commerce and the activities of the farmer. He was, in the first place, engaged in a particular activity—farming and grain harvesting—that Congress had the power to regulate. The individual mandate will apply to everyone just by virtue of their existence—regardless of whether they participate in any activity over which Congress has authority. Where farmer Filburn could have escaped regulation by not growing grain or not farming at all, there’s no exit plan for the escape from the individual mandate.
Other precedents miss the point. Social Security is a tax. Auto insurance, Obama’s favourite analogy, is not mandated by the federal government but by the states. And even if it were federally mandated, the connection to driving across states on federally funded roads provides a crucial nexus to interstate commerce. What’s more, there’s still an exit plan—you don’t have to buy auto-insurance if you don’t own a car. I don’t have auto-insurance, for example, because I don’t have a car. I haven’t driven a car in 3 years, in fact.
It’s the No Exit nature of the individual mandate that should render it unconstitutional. It adds another category to the inevitable—death, taxes and health insurance. The grounds for Congressional authority to do that are fatally weak.
So will the Supreme Court strike down the individual mandate? Predicting the decisions of the Court is famously a fool’s game, especially when cases could take years to reach the Court and we cannot know which Justices will be sitting when the decision is made. But Dave at the League of Ordinary Gentleman makes the point that the mandate pushes Congressional authority into very uncharted territory.
“I can’t predict which way that question will be decided; however, it is worth mentioning that if a law of this nature is upheld on Commerce Clause grounds, then we are moving into new legal territory,” he writes.
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