Green Room

Implications of the new “Tax-Mandate”

posted at 12:08 pm on June 28, 2012 by

So, this is how I understand the Supreme Court decision on ObamaCare.  Congress wrote an individual mandate – to purchase approved health insurance – into the law.  President Obama spoke with great certainty of the provision being a mandate, and not a tax.  Congress didn’t write the mandate in words that would make it a tax.  The description of the provision doesn’t fit that of a tax.  The provision is that you are required to buy something from a commercial vendor – i.e., not send revenue to the government, which is the exact definition of what a tax does – and that you are required to do so if you fit a certain income or employment profile; if you don’t fit the profile, you aren’t required to make the purchase; but if you do fit the profile and fail to make the purchase, you will be fined.

The Supreme Court decided that that’s a tax.

This is what a tax now looks like?  This is an open invitation to “tax” via whatever mandate sounds good to you.  What sort of unequal-before-the-law mandate would not fit this definition of a tax?  Congress can do anything it wants, by the logic of this decision, with the judicial precedent set that levying mandates equals using the power to tax.

Let’s mandate that every adult in America with an income over $80,000 a year has to buy a Chevy Volt or pay a fine.  Make it a 5-year recurring requirement, with the vehicle selected according to the preferences of environmentalists and unions.  Use the IRS to gather the necessary data and enforce the requirement.  It’s just a tax – why not?

Why can’t Congress tell us the size of house we are allowed to buy, require us to buy it, and fine us if we don’t?  Congress would just be taxing us by doing this.  Why can’t Congress mandate that we pay for two weeks of vacation at the tourist hotspots approved by Congress, and fine us if we don’t?  Why can’t Congress order us to pay for college and fine us if we don’t?  Buy furniture, buy certain types or brands of food, use a certain minimum amount of electricity or natural gas; get tattoos, buy a minimum amount of clothing each year – or buy only a maximum amount of clothing, and use only a maximum amount of electricity or natural gas – why can’t Congress require any or all of these things via a Tax-Mandate?

This is a very serious question.  If nothing in the US Constitution or legal precedent can be held to stop Congress from levying an unequally applied health-insurance purchase mandate, then what could stop Congress from levying any other unequally applied purchase mandate?  The same things that would stop a lawn-care or makeup purchase mandate should have knocked down the health-insurance purchase mandate.

It is deeply saddening to see the torture of our law and our idea of law in this instance.  Congress did not, in fact, write a tax; Congress wrote and intended to write a mandate.  SCOTUS has done great harm by so dangerously enlarging the effective definition of a “tax” – and by assuming the privilege of telling Congress what Congress actually did when Congress meant to frame a mandate.  The difference between purchase “mandate” and “tax” is a very real one from every perspective of government and law, and SCOTUS has irresponsibly elided them.

I say the court did not have the constitutional power to do that.  For the purposes of enforcement and politics – in terms of their meaning to our lives – the two things are obviously different.  They are validly separate categories, and it is overriding reality and the common sense of the people to decide that the one is to be interpreted as the other – and will therefore be treated as the other in terms of Congress’s constitutional powers.

If this decision was to be made at all – that a mandate is a tax, and Congress is empowered accordingly – Congress should have made it.  This transformational decision about definitions and distinctions in the law wasn’t for the Supreme Court to make.  A better approach for the court would have been to accept that Congress intended to write a mandate, and rule – on the basis expressed in the majority opinion itself – that Congress doesn’t have that power.  The court could have added that if Congress wanted to write a tax, it could do so.

A bulwark for our constitutional liberty and rights has been smashed.  Taxes do not involve commercial-purchase mandates, and individual purchase mandates, if they are to be implemented at all, belong to the states.  If we do not abide by those definitions and limits, then there will be no limit on what SCOTUS will say the Congress can “tax-mandate” out of our wallets.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

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Going Galt is looking better and better all the time.

ProfShadow on June 28, 2012 at 3:24 PM


This is the very first thing I thought when the ruling came out this morning. Congress can now mandate that I keep a herd of alpacas, and if I don’t they can penalize the HELL out of me for it.

There are now no constitutional limits on the feral government whatsoever.

Dominion on June 28, 2012 at 3:24 PM

Can we call it RobertsCare now?

EddieC on June 28, 2012 at 3:45 PM

Dominion on June 28, 2012 at 3:24 PM

Yup. I’ve been saying since this morning what’s going to stop our betters from deciding that we all need solar panels and then mandating taxing us so that we comply?

This sets a very dangeous precident, but our benevolent god-king did say he was going to fundimentally transform the United States. Congrats, Giggles. You’ve gotten your wish.

crazy_legs on June 28, 2012 at 4:20 PM

I remain confused and really can’t get over this point–where does the SC have the authority to ‘deem’ it a tax when the foundation for their argument was it was NOT a tax.

Translated decision–“the authors of this bill were a bunch of dumbarses and what they meant to call it was a tax, so we hereby uphold the mandate as such”.

Am I far off here?

hillsoftx on June 28, 2012 at 4:40 PM

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Allahpundit on June 28, 2012 at 9:59 PM

Congress did not, in fact, write a tax.

No, the Supreme Court did. According to dissenting opinion, they wrote their own version of the law. Maybe Obama was right when he accused the high court in April of judicial activism.

Howard Portnoy on June 28, 2012 at 8:20 PM