On the constitutionality of the tax

 Based on the commentary I’ve been reading, and the comments I’ve received so far from my previous post, I see that the piece I failed to address the first time around (which, incidentally, Roberts failed to address thoroughly in his opinion as well) is the question of whether, if the mandate is a “tax,” it is a constitutional one. The dissent took Roberts to task for this oversight, and I should have addressed it in my initial thoughts. I will do so now.

I think the question is a debatable one. I do not agree with Kennedy, Scalia, Thomas and Alito, that Roberts has engaged in wholesale “Judicial tax-writing.” The interpretation that this was a tax was in the legislation from the beginning. That’s precisely why the President and his surrogates had to so vociferously defend themselves against the (perfectly accurate) accusation that this was a tax. To say that Justice Roberts came up with that interpretation on his own is to ignore a significant chunk of the public policy debate around the law over the past several years.

But if it’s a tax, is it constitutional? Just as I am no legal scholar, I am also no tax lawyer, so again my opinion is hardly definitive, but for what it’s worth, given the text of the Constitution and Supreme Court precedent on this question, I’d say, “Yes.”

I hate that fact. I don’t like taxes any more than any other tea-party-sympathizing, Republican-voting conservative out there. But there it is. This seems to me to be an example of an excise tax on the economic activity of self-insuring for health care, which would make it perfectly constitutional. It also makes it a very bad idea from a policy standpoint, but that’s not Roberts’ job to decide, and it irks me that the usually cautious conservative wing of the court delves deeply into the policy implications of the law in its dissent. That is not the court’s job!

But back to the excise tax. An excise tax is “a tax that is measured by the amount of business done (not on property or income from real estate).” Excise taxes were a favored method of taxation by the founding fathers themselves – especially the first Treasury Secretary, Alexander Hamilton.

So from a legal construct, then, the “individual mandate” is an excise tax on the economic decision individuals make to self-insure.

If this sounds suspiciously like the arguments in favor of the mandate from a commerce clause perspective . . . the argument that everybody will at some point get sick, so Congress is perfectly free to regulate them, here’s the difference:


As a “mandate,” the law criminalizes the act of self-insuring . . . that is, the act of not acting to purchase health insurance. There is no choice involved: A private individual purchases a product from a private seller, or else is defined as a criminal under federal law. That, said five of the nine justices, is beyond Congress’ ability to do.

As a tax, though, it gives the individual a choice: purchase insurance, or self-insure and pay the tax.

I’m going to use a much-rehashed, imperfect analogy to explain what I mean: Think of it like car insurance. I grew up in California, where the law says “You must be insured in order to drive.” When stopped by a police officer, they ask you to show them your license, registration and proof of insurance. There is no choice. You are insured, or you cannot (legally) drive.

I now reside in Virginia. The law here is different. You have a choice to either purchase auto insurance or pay the government a $500 annual fee and self-insure. If you self-insure and get in an accident, you’re on your own hook to pay for it . . . but the government still has your $500.

What Roberts did was declare that the California model is unconstitutional (for health insurance, at the federal level), but the Virginia model is not.

As I said, it’s an imperfect analogy – because each of us has a choice whether to drive or not in the first place, where nobody has a choice whether or not to get sick. However, I think it fits well enough to justify Roberts’ logic in the court’s opinion.

Let me say again: As a matter of policy, I think this whole bill is a terrible idea that will drive up costs, reduce the quality of service, drive many doctors out of business, and generally make the state of health care in the U.S. much, much worse. I think it needs to be repealed as quickly and thoroughly as possible. I also think there are plenty of other viable constitutional challenges to this law – first and foremost the HHS birth control mandate and the IPAB – but I no longer believe the “mandate” to be among them.