Dems now calling federal ObamaCare mandate a “tax”

posted at 3:07 pm on April 29, 2010 by Ed Morrissey

Despite their bravado, Democrats in Washington apparently aren’t at all sure that the federal mandate to buy insurance will survive the scrutiny of the Supreme Court.  Randy Barnett reports in the Wall Street Journal that the backers of the bill have begun calling it a tax rather than a mandate in an effort to play a rhetorical shell game with the courts and to avoid having the core of their efforts ruled unconstitutional.   But will that fool the Supreme Court at all?  Barnett thinks not:

A “tell” in poker is a subtle but detectable change in a player’s behavior or demeanor that reveals clues about the player’s assessment of his hand. Something similar has happened with regard to the insurance mandate at the core of last month’s health reform legislation. Congress justified its authority to enact the mandate on the grounds that it is a regulation of commerce. But as this justification came under heavy constitutional fire, the mandate’s defenders changed the argument—now claiming constitutional authority under Congress’s power to tax.

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

But even if they did, the argument would still have its problems:

This shift won’t work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.

In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

Mandates always involve penalties. Whether they are called “taxes” or “fines” is immaterial to the application of the mandate or “tax” itself. In the case of the ObamaCare mandate, it doesn’t tax or penalize commerce, but the conscious decision not to engage in commerce. Even under the excessively broad interpretations of the Commerce Clause allowed by the Supreme Court over the last few decades, it will be hard for even the liberal justices to agree to that as part of the Constitution. That interpretation would literally mean that the government could dictate any and all commerce choices of American citizens, including the choice not to buy anything.

If nothing else, it shows that the backers of ObamaCare have a lot less confidence in the “Good and Welfare” clause than they have argued — and for good reason, even apart from the fact that it doesn’t exist.


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You aren’t taxed for something you, um, didn’t do.

lorien1973 on April 29, 2010 at 3:10 PM

can’t wait for the week that the mandate is stricken down. I will be glorious reading about it in KOS, HuffPo and DU

Doctor Zhivago on April 29, 2010 at 3:13 PM

backers of the bill have begun calling it a tax rather than a mandate in an effort to play a rhetorical shell game with the courts and to avoid having the core of their efforts ruled unconstitutional.

In the old days, it was the text of the law which mattered.

unclesmrgol on April 29, 2010 at 3:13 PM

They sold the Social Security debacle as a tax … But this is not going to fly.

tarpon on April 29, 2010 at 3:14 PM

… it will be hard for even the liberal justices to agree to that as part of the Constitution.

Nah, not really.

Midas on April 29, 2010 at 3:15 PM

I prefer to think of it as ice cream

faraway on April 29, 2010 at 3:15 PM

It is going down.

Vashta.Nerada on April 29, 2010 at 3:15 PM

“there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

One wonders how cigarette and alcohol taxes have held up.

Ronnie on April 29, 2010 at 3:16 PM

Rhetorically, there is little difference between a mandate to engage in commerce, and a tax penalty if one does not engage in commerce. Either one is unconstitutional – even the most liberal emanation-seeing jurist would have to agree.

Vashta.Nerada on April 29, 2010 at 3:17 PM

That interpretation would literally mean that the government could dictate any and all commerce choices of American citizens, including the choice not to buy anything.

Decisions to marry or not marry, and whom to marry effect commerce. As does where to live, what occupation to have, how many children to have, if & where to worship. It would open the floodgates to unlimited government power. Which to the Fascist-Democratic (and I am not being facetious in that label) Congressional leadership & Dear Liar, is exactly what they want.

I’m sorry, but our records show that you have been watching Fox News and not CBS news. That undercuts CBS news’ rating, and thus lowering their ad rates. That is an economic decision effecting commerce. We are going to fine, er tax you for that, and as this is a third time, the fine, er tax is $10,000. Please pay immediately to avoid the 10% daily surcharge.

rbj on April 29, 2010 at 3:18 PM

What model government motors vehicle would you like? What you want Toyota, then there will be additional tax. You can pay if with your income tax.

d1carter on April 29, 2010 at 3:20 PM

This whole process has been very taxing…the problem comes from the word mandate…Barney Frank said that he had that right, all gays have that right, and the Supreme Court will uphold his right to mandate…

right2bright on April 29, 2010 at 3:21 PM

But Obama said if you make less that 200 grand our taxes won’t go up!?!?!?!/1?!?!?!

I’m sorry but this is freaking hilarious: http://www.youtube.com/watch?v=yDwll1IDiFU

Joe Caps on April 29, 2010 at 3:23 PM

I hope the Supreme Court busts them clean down to their pink meat….is that racist?

sicoit on April 29, 2010 at 3:24 PM

Wait a minute…………….

If they even try to call it a “tax”, there goes the Anointed One’s promise “not to raise any tax on anyone making less than $250,000 a year”

Check Mate.

Liars and con-men always end up this way. They paint themselves into a corner and their game is exposed and their gig is up.

Opposite Day on April 29, 2010 at 3:24 PM

rbj on April 29, 2010 at 3:18 PM

Also coming soon:
I’m sorry, sir, but since you drive only a Toyota vehicle, unless you purchase at least one Government Motors vehicle prior to the end of the year, you will be “taxed” $12,000.

iurockhead on April 29, 2010 at 3:24 PM

You mean to tell me the nuanced, educated and sophisticated ones David Brookes told us about didn’t see this coming? Next you’re going to tell me they never held real jobs and welch on their patriotic taxes.

DanMan on April 29, 2010 at 3:27 PM

OK, so they tax every single resident (citizen?) on a per capita basis. Those with appropriate health insurance coverage may petition for a refund or exemption.

jwolf on April 29, 2010 at 3:27 PM

I know I know, let’s call waterboarding “quenching wonderfulness,” and it will be ok again!

Akzed on April 29, 2010 at 3:29 PM

Opposite Day on April 29, 2010 at 3:24 PM

Someone said (was it an author on Beck, or Hannity?) that Obama has already violated his promise of no new taxes under $250K some 14 times.

John the Libertarian on April 29, 2010 at 3:29 PM

If the mandate goes away, you’d better have a plan in place to deal with guaranteed-issue, or say goodbye to the insurance companies.

DrSteve on April 29, 2010 at 3:31 PM

This whole process has been very taxing…the problem comes from the word mandate…Barney Frank said that he had that right, all gays have that right, and the Supreme Court will uphold his right to mandate…

right2bright on April 29, 2010 at 3:21 PM

Well, I got it even if nobody else did. Pretty funny.

platypus on April 29, 2010 at 3:32 PM

If they even try to call it a “tax”, there goes the Anointed One’s promise “not to raise any tax on anyone making less than $250,000 a year”

Check Mate.

That promise went out the window some time ago, many times over.

Midas on April 29, 2010 at 3:33 PM

When this is overturned, I wonder what the Democrats will do to PAY for all their ‘enhanced’ coverage. Or will Obama simply declare “medical care should be FREE”?

GarandFan on April 29, 2010 at 3:34 PM

Even under the excessively broad interpretations of the Commerce Clause allowed by the Supreme Court over the last few decades, it will be hard for even the liberal justices to agree to that as part of the Constitution.

watch ‘em my friend

cmsinaz on April 29, 2010 at 3:34 PM

From “mandate” –> “tax” –> “legal theft”

Ltlgeneral64 on April 29, 2010 at 3:35 PM

It’s just a stumbling block. Now they’ll be forced to think of something even worse unless we vote these idiots out of office.

SlaveDog on April 29, 2010 at 3:39 PM

Don’t tax me, bro…

HornetSting on April 29, 2010 at 3:41 PM

OK, so they tax every single resident (citizen?) on a per capita basis. Those with appropriate health insurance coverage may petition for a refund or exemption.

jwolf on April 29, 2010 at 3:27 PM

Obamacare “refund”= redistribution of my tax dollars
Obamacare “exemption”=Amish. For the rest of us there will be no exemption when our employers decide the fine for not offering health insurance is cheaper. And, under the plan passed my health insurance costs go up $6,000+/yr. Maybe I’ll just pay the fine, uh tax, too.

txhsmom on April 29, 2010 at 3:43 PM

OT: Breaking, Lindsay Lohan caught with gun in mouth. Says it’s art.

andy85719 on April 29, 2010 at 3:43 PM

The division of patients has already begun. When it all falls down, the medical professionals are going to do things the Chicago way – they’re going to remember who their friends are.

Just like Jug Ears taught us to do. And I’m going to laugh my a$$ off while I’m watching democraps standing in line at the local branch of Duh Won’s clinic.

Jug Ears is going to find out that killing America is not as easy as he thought.

platypus on April 29, 2010 at 3:44 PM

Yeahyeahyeah. Whatever…

They told us — over and over and over again — that no one would ever have to go to JAIL if they didn’t pay for the non-socialized non-mandatory health care mandate.

Is the expiration date on that promise officially over now?

logis on April 29, 2010 at 3:45 PM

So, when are they going mandate that we purchase Government Motors’ vehicles??

I R A Darth Aggie on April 29, 2010 at 3:45 PM

If the mandate goes away, you’d better have a plan in place to deal with guaranteed-issue, or say goodbye to the insurance companies.

DrSteve on April 29, 2010 at 3:31 PM

Exactly! And what does the federal government do when the insurance companies all go out of business? Does the phrase “single payer” ring any bells?

I’m all for finding this unconstitutional, but at the same time recognize that they probably planned it that way.

Dee2008 on April 29, 2010 at 3:46 PM

It’s just a stumbling block. Now they’ll be forced to think of something even worse unless we vote these idiots out of office.

SlaveDog on April 29, 2010 at 3:39 PM

Bingo, its called VAT

ouldbollix on April 29, 2010 at 3:46 PM

So now it seems that using w**kie means your post goes to cyberhell, even when using 00. This is pathetic, considering that Jug Ears’ wife doesn’t even need makeup to do the role.

platypus on April 29, 2010 at 3:46 PM

If the mandate goes away, you’d better have a plan in place to deal with guaranteed-issue, or say goodbye to the insurance companies.

DrSteve on April 29, 2010 at 3:31 PM

This is going to be so bad. I’m going to hang every bit of our health care system’s failure on Democrats ’til the day I’m denied some life giving treatment by the death panels. Then, I’m going to have it engraved on my tombstone.

txhsmom on April 29, 2010 at 3:46 PM

Didn’t Obama rebuke George Stephanopolus over and over again and insist that it’s NOT A TAX ?

Here’s the Clip and the Transcript.

http://blogs.abcnews.com/george/2009/09/obama-mandate-is-not-a-tax.html

Maybe all the Attorneys have to do before the Supreme Court is play this clip…

DaveCal on April 29, 2010 at 3:51 PM

If the mandate goes away, you’d better have a plan in place to deal with guaranteed-issue, or say goodbye to the insurance companies.

DrSteve on April 29, 2010 at 3:31 PM

The answer if you are an insurance company is Don’t-issue, and let the feds try to sue you.

Vashta.Nerada on April 29, 2010 at 3:51 PM

Unless the Court stricks down guaranteed issue along with the mandate, Pelosi, Reid, and Obama will be laughing their ass off. Single payer will come faster then they could ever imagine because all the Dems along with a handfull of RINO’s will thwart any effort to repeal guarantedd issue.

Hope I’m wrong.

WisRich on April 29, 2010 at 3:55 PM

IIRC, the “mandate” or “tax” or whatever they’re calling the obligation to purchase health insurance now, only applies to citizens and legal residents. But with somewhere between 12-40 million illegal aliens residing in the U.S. and burdening the U.S. health care system with their routine “free” use of our ER’s (per federal law), why couldn’t a citizen make an argument that he/she is being denied equal protection of the law under the Obamacare scheme? Why should illegals, whose behavior clearly affects interstate commerce (when it comes to U.S. healthcare) as much as, or more than, any legal resident or citizen, be exempt from the “mandate” to purchase, or the “tax”?

AZCoyote on April 29, 2010 at 3:56 PM

Didn’t Obama rebuke George Stephanopolus over and over again and insist that it’s NOT A TAX ?

Here’s the Clip and the Transcript.

http://blogs.abcnews.com/george/2009/09/obama-mandate-is-not-a-tax.html

Maybe all the Attorneys have to do before the Supreme Court is play this clip…

DaveCal on April 29, 2010 at 3:51 PM

Down the Memory Hole….

Caper29 on April 29, 2010 at 3:59 PM

You may also remember that ObamaCare lacks a severability clause; another example of how poorly written this “signature” piece of legislation was. Earlier this month, Clarice Feldman collected legal opinions and commented on them in Is the Individual Mandate ‘Severable’ from the Rest of ObamaCare?

That the individual mandate is unconstitutional, of course, would not completely resolve the issue because legislation of such length and complexity often contains a “severability clause” – a provision that if any portion of an act is found unconstitutional, the remainder will still stand. But ObamaCare apparently contains no such provision.

Moreover, as Processor Kopel argues, the individual mandate is at the very heart of the legislation. It all must be struck if the individual mandate is. To paraphrase his argument, ObamaCare would turn our private insurance companies into ultra-regulated public utilities (and probably bankrupt ones at that). But the scheme is utterly senseless in the absence of the individual mandate, and that mandate is not severable from the rest of the act….

…I think that Professors Turley and Kopel are correct that the most constitutionally vulnerable portion of ObamaCare is the individual mandate and that it cannot be severed from the rest of the act. And I think Professor Somin is right that there is every reason to believe that the administration will utilize everything at its disposal to prevent or delay the resolution of the pending cases in the hope that public opinion will shift and that this will affect the final resolution in its favor. Although I suspect that the administration now “owns” health care in the public mind and rage at the act will only grow with each cut-off in benefits, increase in taxes, and difficulty in getting care.

How ironic is it that the “heart” of ObamaCare is also “the most constitutionally vulnerable portion”?

INC on April 29, 2010 at 3:59 PM

Plus, since the “tax” will mostly affect those making less than 250K a year, it will finally expose Øbama for the liar he is…

Oh, wait. It seems that’s been done.

Nevermind.

Kafir on April 29, 2010 at 4:05 PM

Obama has expressed his disdain for our Constitution in that it focuses on what the government cannot do. He, Pelosi, Reid and the others who voted for Obamacare need to be slapped down by SCOTUS and voted out of office.

GaltBlvnAtty on April 29, 2010 at 4:06 PM

From “Kill the Bill” to “Withdraw the Law”.

Left Coast Right Mind on April 29, 2010 at 4:07 PM

So, when are they going mandate that we purchase Government Motors’ vehicles??

I R A Darth Aggie on April 29, 2010 at 3:45 PM

We have been lied to again. Yesterday I looked up Fiat. For some reason, there is no indication to their shareholders that they bought Chrysler. We were told they did. I can’t see the quarterly financial reports. If they are public, they must file 10k and other reports in a timely fashion.

seven on April 29, 2010 at 4:07 PM

You may also remember that ObamaCare lacks a severability clause; another example of how poorly written this “signature” piece of legislation was. Earlier this month, Clarice Feldman collected legal opinions and commented on them in Is the Individual Mandate ‘Severable’ from the Rest of ObamaCare?INC on April 29, 2010 at 3:59 PM

Want to talk contract law? If I buy Obamascare and they reject my claims. I will fire them. I have to. It would be a material breech of contract. Under their twisted contract, they can refuse to cover my claims but I am unable to refuse to buy fake insrance from the gubment.

seven on April 29, 2010 at 4:11 PM

Remember Weiner on BOR a few weeks ago denying that the mandate had anything to do with the IRS?

And now we find out that it’s a tax?

Where’s the Weiner video clip?

BuckeyeSam on April 29, 2010 at 4:17 PM

Also coming soon:
I’m sorry, sir, but since you drive only a Toyota vehicle, unless you purchase at least one Government Motors vehicle prior to the end of the year, you will be “taxed” $12,000.

iurockhead on April 29, 2010 at 3:24 PM

Yup.

And how about,
I’m sorry sir, but you aren’t buying & smoking cigarettes, thus not paying int S-CHIP, as well as leading to a longer life span, incurring more debt on social security. Unless you start smoking, you will be fined $10,000 a day. And refusal/inability to pay will result in jail time, reeducation camp, where you will be forced, encouraged to see the errors of your ways and start smoking.

There is no end to this.

rbj on April 29, 2010 at 4:19 PM

Well maybe they can just “deem” it constitutional and not bother the Supreme Court at all, considering how busy they are.

Lily on April 29, 2010 at 4:19 PM

You may also remember that ObamaCare lacks a severability clause; another example of how poorly written this “signature” piece of legislation was. Earlier this month, Clarice Feldman collected legal opinions and commented on them in Is the Individual Mandate ‘Severable’ from the Rest of ObamaCare?INC on April 29, 2010 at 3:59 PM

Seriously. Now there’s an Easter egg we can all learn to love.

Dee2008 on April 29, 2010 at 4:25 PM

Wait a minute…………….

If they even try to call it a “tax”, there goes the Anointed One’s promise “not to raise any tax on anyone making less than $250,000 a year”

Check Mate.

Liars and con-men always end up this way. They paint themselves into a corner and their game is exposed and their gig is up.

Opposite Day on April 29, 2010 at 3:24 PM

Bingo! Hoist by their own petard! I swear I’ll only laugh on the inside (snicker, snicker).

College Prof on April 29, 2010 at 4:27 PM

When will all this lead us: gas tax, checkbook tax, obese tax, salt tax, can ass tax be far behind. Seems as if more and more senators are hanging around in Max Baucus’ office after hours.

Kissmygrits on April 29, 2010 at 4:32 PM

No crr6 ‘legal mind’ to argue for them…

Schadenfreude on April 29, 2010 at 4:45 PM

right2bright on April 29, 2010 at 3:21 PM

LOL, I had to read that twice

JusDreamin on April 29, 2010 at 5:04 PM

The Amish aren’t the only one exempt. I’ve belonged to a Christian medical share catastrophic plan since ’02, and I just found out we’re exempt from the individual mandate and fine, (but I still want ObamaCare completely repealed!)

Now that, according to the AAPS, many doctors are considering going strictly fee-for-service, and certain catastrophic plans are exempt- we just might get to where healthcare needed to be all along. How’s THAT for an unintended consequence!

parteagirl on April 29, 2010 at 5:57 PM

All rights are really taxes, duh!

-democrat

Inanemergencydial on April 29, 2010 at 6:21 PM

This can’t be right. Obama promised us if we made less than $250K we wouldn’t see our taxes raised one thin dime.

Seriously, that man has done nothing but tell one lie after another. I still do not know who is the puppet master in control of his puppet strings but I’d sure like to find out.

GrannySunni on April 29, 2010 at 6:21 PM

So; When are we going to have blue haired old ladies throwing aluminum walkers in the Chesapeake?

Cybergeezer on April 29, 2010 at 6:43 PM

I would like to the lawyers who will try to defend this “tax” to fall on their knees before the Supremes and beg for mercy.

Mercy they don’t deserve or will be given. Boy, I miss tarring and feathering.

madmonkphotog on April 29, 2010 at 8:30 PM