Prognostication: A Flashback

Below is a repost of something I posted on December 16, 2009, several months before PPACA was finally enacted.  As you will note, the post predicts the following: 1. Whether the mandate would be constitutional under the Commerce Clause would be a very close issue, particularly because it is debatable whether a failure to engage in economic activity could constitute an “inherently economic activity”; 2.  The mandate is clearly Constitutional as a tax, and it clearly functions as a tax, rather than a penalty; 3. The Administration’s politically-motivated insistence on denying that the mandate is a tax severely undermined this strong argument for the mandate’s Constitutionality, rendering an open-and-shut legal argument into a potentially very close argument.  

Fast forward to June 28, 2012, and the Supreme Court has: 1. By a 5-4 vote found that a failure to engage in economic activity cannot constitute an economic activity; 2. By a 5-4 vote found that the mandate survives as a valid use of the tax power, with the 4 dissenters objecting primarily on the grounds that this cannot be a tax at all due to the politically-motivated insistence in the legislation on calling the mandate a “penalty” rather than a tax.  

A reminder to the Obama Administration: you just came within a John Roberts bad hair day of losing the signature achievement of your Administration because you chose to undermine your lawyers for minimal short-term political expediency.  You should stop doing this. 

President Obama’s claim that a health insurance mandate is not a tax strikes me as marginally good politics and absolutely terrible lawyering.  I think Jason Kuznicki (also here) and by extension Will, are absolutely, 100% correct that an individual mandate is necessarily characterized as a tax, and a regressive one at that.  But that’s not the interesting thing to me here.

Accepting for the moment that it is only debatable – rather than certain – whether an individual mandate is a tax, Obama’s attempts to characterize the mandate as something else are hardly a make-or-break argument for passage of health care reform.  Health care reform is not going to pass or fail to pass because people think the mandate should be characterized as a “tax” or merely as an attempt to get the uninsured to “take responsibility to get health insurance.”  The people affected, whether you characterize it as a tax or as something else, are going to be the same people; the people worried about being affected are going to be the same people; the costs that the mandate will impose on them will be the same.  People for the most part get this.  Sure, it may be mildly politically embarassing for Obama to sign a tax increase on a subset of the American middle class in contradiction of his campaign pledge, but if the resulting bill is as good as Obama wants voters to think, it’s tough to see him paying much of a price at the polls for it.

But by claiming that the mandate is not a tax, Obama undermines the single strongest argument that the mandate is constitutional.  Despite my opposition to most of the pending health care proposals, in September I criticized arguments that the mandate would be unconstitutional, writing:

There is also an even more fundamental flaw here – the interstate commerce clause doesn’t even apply to the extent that the mandate is accurately characterized as a “tax.”  Article I, Section 8 of the Constitution provides Congress with the authority to “lay and collect taxes…. and provide for the common defense and general welfare of the United States.”

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[Proponents of the unconstitutionality argument] offer no authority whatsoever for the proposition that a “‘tax’ that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority.”  It appears that their basis for this claim is from Bailey v. Drexel Furniture Co. (The Child Labor Tax Case), a 1922 case that prohibited Congress from imposing a tax of 10 percent on all profits earned by any company that employed child labor during the course of a year.  The problem is that subsequent precedent severely restricted the value of this case, holding that taxes that although Congress may not use the taxation power purely to penalize activities that it otherwise could not regulate, “unless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.” US v. Kahriger (1953).

It is difficult to see how an individual health insurance mandate in the form of a tax would be “extraneous to any tax need.” Indeed, it is justified at least in part due to a need to require the uninsured to pay for the services they actually use.  It is also neither intended nor expected that the tax will eliminate the existence of the uninsured – we are not, for instance, talking about a tax of tens of thousands of dollars per year of being uninsured.  To be sure, the goal is universal coverage, but no one expects that an individual mandate enforced by a tax of a thousand or so dollars a year will remotely achieve that goal.

In other words, if the mandate is accurately characterized as a tax, then the mandate is constitutional under Congress’ taxation powers.  End of story.  Sure, you may get Justice Thomas and Justice Scalia arguing that this “tax” is merely an impermissible attempt to circumvent states’ rights under the guise of a tax, but in light of the mandate’s role in the overarching scheme of health care reform (which, broadly speaking, is clearly within the federal government’s purview under post-New Deal constitutional interpretations) this would not be a view that would have any chance of garnering five votes.

But Obama’s very public statements that the mandate is not a tax directly undermine this very strong legal argument.  This is doubly true when you consider that Obama is not only President, but a very public advocate of pretty much anything that has a chance of passing Congress in the health care reform arena.  Although Justice Scalia isn’t much a fan of discerning legislative intent (an area where I find him quite persuasive, by the way), much of the rest of the Court is, and given Obama’s role in health care reform, it’s difficult to conceive of Justice Kennedy ignoring President Obama’s vociferous denials that the mandate is not a tax.  In short, the President’s strongly worded denials make it far more difficult for a Supreme Court justice to conclude that the mandate is merely a tax, and thus virtually a per se proper exercise of Congressional authority.

My opposition notwithstanding, I suspect that even if the mandate is not a “tax” within the meaning of the Constitution, it would still withstand Constitutional muster under post-New Deal case law.  But it would be a much closer issue, particularly in light of the apparent death of the public option (for real this time!).  Such an argument would necessarily hinge on Congressional authority to regulate economic activity under the interstate commerce clause, but there is a counterargument to be made that a decision not to purchase something cannot be an “inherently economic activity” since it involves no activity whatsoever.  Moreover, it is possible to distinguish a health insurance mandate from Social Security or Medicare Part A because the mandates in those two programs require participation in government-run programs, whereas with the death of the public option, the health insurance mandate will require participation in privately-run insurance programs.  I don’t think this distinction is enough to make the mandate unconstitutional, but it is at least arguable that it is.

Certainly, on a Constitutional level, a health insurance mandate would not at all be analagous to car insurance mandates as President Obama argues.  Car insurance mandates are a function of state governments and thus have very little to do with the interstate commerce clause.  But even if car insurance mandates were a function of federal law, the analogy quite obviously fails when you consider that purchasing a car is clearly an “inherently economic activity” that would likely make it regulable by the federal government.  One need not purchase car insurance if one does not purchase a car, but under a health insurance mandate, one would be required to purchase health insurance whether or not one actually used health services.

Again, I think ultimately an individual health insurance mandate would likely pass Constitutional muster under post-New Deal precedent whether or not it is characterized as a tax.  The decision not to purchase health insurance clearly has an aggregate effect on interstate commerce in a way that even cases like Raich, where the Court upheld a federal law’s applicability to medical marijuana dispensaries even though the convoluted alleged effect on interstate commerce was merely a post-hoc rationalization for the law, rather than the law’s actual purpose, as would be the case with an individual health insurance mandate.  But it would be a much closer issue than if the mandate were deemed a tax, and there would be enough of a distinction with existing precedent that it would at least be possible for a Justice Kennedy to divine a rule under which the mandate is unconstitutional in a way that the legislation in Raich was not.

(Image via Mother Jones)