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Power Line Blog


July 2, 2012


It Was Always a Tax


John Hinderaker


Yesterday I posted the rather pathetic video of White House Chief of Staff Jack Lew on Fox News Sunday, where Lew struggled to deny that the Obamacare mandate is a tax, and that the Supreme Court upheld it only as such. When confronted with footage of the administration’s lawyer telling the Court that the mandate is a tax, Lew acted as though he had never heard such a thing before.


In fact, the Democrats have always argued that the Obamacare mandate is a tax, and as such is constitutional. During the debates in Congress, they emphasized this point when the law’s constitutionality came under attack. Max Baucus, Chairman of the Senate Finance Committee, said:


“Mr. President, our committee and the HELP Committee have given a lot of thought to the provisions in this legislation. We also gave a lot of thought to the constitutionality of the provisions—how they work and the interrelationship between the power of Congress and the States and what States will be doing, particularly under the commerce clause and the tax-and-spending powers of the Constitution.


It is very strongly our considered judgment, and that of many constitutional scholars who have looked at these provisions—and many articles have been put in the Record—that clearly these provisions are constitutional. The commerce clause is constitutional, the tax-and-spending clause, and the provisions clearly are constitutional.


Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.”


These were always the Democrats’ two arguments. It is worth noting that they were not arguing in the alternative; there is no inconsistency between the two theories. They always claimed that Obamacare was constitutionally justified by both the Commerce Clause and the Tax and Spend clause.


Baucus inserted into the Congressional Record an op-ed by Professor Erwin Chemerinsky, which said in part:


“Congress also could justify this as an exercise of its taxing and spending power. Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of the Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this.”


On December 22, 2009, Pat Leahy, the appalling Chairman of the Senate Judiciary Committee, also emphasized that Obamacare is a tax:


“The authority and responsibility for taking actions to further this purpose is vested in Congress by article I of the Constitution. In particular article I, section 8, sets forth several of the core powers of Congress, including the “general welfare clause,” [i.e., tax and spend] the “commerce clause” and the “necessary and proper clause.” …


Any serious questions about congressional power to take comprehensive action to build and secure the social safety net have been settled over the past century. According to article I, section 8, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” This clause has been the basis for actions by Congress to provide for Americans’ social and economic security by passing Social Security, Medicare and Medicaid. Those landmark laws provide the well-established foundation on which Congress builds today by seeking to provide all Americans with access to quality, affordable health care. … These Supreme Court decisions and the principles underlying them are not in question. As dean Erwin Chemerinsky of the University of California Irvine School of Law wrote in a recent op-ed in The Los Angeles Times: “Congress has broad power to tax and spend for the general welfare. In the last 70 years, no federal taxing or spending program has been declared to exceed the scope of Congress’ power. The ability in particular of Congress to tax people to spend money for health coverage has been long established with programs such as Medicare and Medicaid.”


House Democrats likewise argued that Obamacare is constitutionally justified as an exercise of Congress’s power to levy taxes and spend money. Thus, Rep. George Miller of California said:


“The bill contains an individual mandate to either obtain health insurance or pay a penalty. This provision is grounded in Congress’s taxing power but is also necessary and proper–indeed, a critical linchpin–to the overall effort to reform the health care market and bring associated costs under control throughout interstate commerce.”


So the Democrats have been telling us for years that the Obamacare mandate is a tax. This was also the position that the administration’s lawyers have taken in the courts, going back to when the first cases were filed shortly after the legislation was signed into law. In the Supreme Court, the Obama administration asserted two arguments on behalf of the law’s constitutionality: its lead argument was the Commerce Clause, but it also gave considerable emphasis to the claim that the mandate is a tax. Again, these arguments were in no way inconsistent.


The brief that administration lawyers filed on behalf of President Obama argued at length that the mandate is a tax. At risk of boring our readers, I am going to reproduce that entire section of the brief. You shouldn’t feel obliged to read it all, but it is actually quite interesting:


Hey, that’s what you get for reading a web site that is written by lawyers. But even if you didn’t follow all of that, I am sure you got the point: the Obama administration argued vigorously, and at considerable length, that the Obamacare mandate is a tax. For Obama and his surrogates to deny now that Obamacare is a tax, or to express surprise that the Supreme Court has so held, is beyond disingenuous. Of course, such dishonesty is par for the course for the president and his minions.


Waiting in the wings is a second question: was the administration’s argument that the mandate is constitutional under Congress’s power to levy taxes meritorious? Like most conservatives, I failed to pay enough attention to this part of the Democrats’ case. With hindsight, that was a mistake. The federal courts have been extraordinarily deferential to both Congress’s and the states’ use of their power to levy taxes, and to tailor them as they choose. Thus, the courts have refused to hear challenges to taxes on the ground, for example, that they are discriminatory.


Many conservatives, outraged by the Supreme Court’s decision in the Obamacare case, have denounced Justice Roberts, asserting that he made a “political” choice, that he was intimidated by the liberal press, and so on. I see no basis for any of these claims. Actually, of the nine justices who voted on Obamacare, Roberts strikes me as one justice–perhaps the only one–who did not vote on the basis of politics or ideology, but called the case exactly as he saw it, based on the Supreme Court’s long tradition of 1) deferring to Congress in matters of taxation, and 2) interpreting any law in a manner that makes it constitutional if it is “fairly possible” to do so. Roberts concluded that it is “fairly possible” to view the mandate as a valid use of Congress’s power to levy taxes and spend money. That seems like a reasonable conclusion under existing authorities, as I argued here.


Someday, I hope that the Supreme Court will roll back the powers of the federal government; or, failing that, the people will do so via constitutional amendment. But in the meantime, while the issues involved are close questions and could have gone either way, the Court’s conclusion that Obamacare is constitutional has a reasonable basis in existing precedents and traditions. Conservatives, in my view, should stop attacking the Court and get back to attacking Obamacare–a national socialist approach to health care–as horrible policy.