Congress’s Taxation Power: The New "Interstate Commerce" Clause
On Thursday the Supreme Court rejected the Obama administration’s justification for the Affordable Care Act’s individual mandate as being covered by the Interstate Commerce Clause, since the law as written would not regulate commerce but compel it.
The court nonetheless upheld the individual mandate, which requires people to buy health insurance from private companies. The administration had characterized the penalty for not buying insurance as such, yet also asked the court to consider it a tax for the purpose of preventing the plaintiffs from suing, since under the Tax Anti-Injunction Act taxes may be challenged in court only after they have been paid. Roberts and the majority agreed that the penalty could not be considered a tax for the question of whether the plaintiffs could bring suit now. Yet in their view, it was perfectly acceptable for the penalty to be considered a tax for the purpose of forcing people to buy health insurance.
Roberts admitted, “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’”
Yet in the majority opinion he wrote, “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”
And therein lies the rub: Not purchasing health insurance is not an “activity.” It is a non-activity. (The hint is the word “not.”)
According to Roberts’ (correct) reasoning, “not buying healthcare” is not commercial activity the government can regulate through the Interstate Commerce Clause. Yet somehow “not buying healthcare” is commercial activity the government can tax. How can “not buying health insurance” be non-activity and activity at the same time?
Some conservatives hunting for a silver lining have argued that at least the ruling limited the provenance of the Commerce Clause. Yet the ruling simultaneously expanded the purview of Congress’s taxing power in such a way as to potentially make up for almost anything the Commerce Clause doesn’t cover. What have we gained? What good is restriction of the Commerce Clause if, due to the expansion of other powers, it can’t protect us from abominations like Obamacare?
The ruling expanded Congress’s taxation power in at least three ways. First, we now know that non-activity can be taxed. When has the federal government ever taxed non-activity? Penalized, yes—but taxed our not doing something?
Second, we know that even something that was explicitly disavowed as a tax by its creators and defenders can be considered a tax, if five Supreme Court justices feel like rewriting the law and considering it one.
Third, as spelled out by Roger Pilon, “[T]he power to tax… was designed to enable Congress to obtain the funds needed to carry out its other enumerated powers or ends. It was not, as Madison made clear in Federalist 41, and often on the floor of Congress, an independent power to tax for any purpose at all. Search as you will through those 18 enumerated powers and you will find no power to enact ObamaCare or anything like it.” But thanks to Chief Justice Roberts, we now know that the federal government can levy taxes for any reason it wants, whether it needs the money for any enumerated power or not—and remember that the individual mandate, if it operated properly, would result in $0 revenue.
Also disturbing is the fact that the justices may not have even reaffirmed the limits of the Commerce Clause. As Mark Levin wrote, “If five justices had intended for their view of the commerce clause (and necessary and proper clause) to be controlling as the majority view, they would have said so by joining or concurring in each others’ [written arguments]. They didn’t. So, while we can cobble them together, as a formal legal matter, it is a troubling issue. While the status quo stands re the commerce clause (and necessary and proper clause), there was no formal majority on those issues.”
Of course all this chitchat about RobertsCare will go over the heads of most liberals, for whom I want to ask, not “How is the healthcare law constitutional?” but “Do you even care whether it’s constitutional?” This is the same group of people, after all, who consistently defended the law, not by talking about its legal soundness, but by claiming that the Heritage Foundation and Mitt Romney had instigated it. These are the same folks who for two years eschewed discussion of Obamacare’s constitutionality for posting pictures of sad-eyed looking children on Facebook with captions like “Yolanda Rodriguez can finally get treatment for her spina bifida!”
So now we can rest assured that Congress will never mandate that we buy broccoli, drink skim milk, or do calisthenics. It’s just going to tax us to death if we don’t, and with the imprimatur of a “conservative,” Republican-appointed Supreme Court Chief Justice.
Previously published in modified form at Red Alert Politics