An Unconstitutional Tax if it Is a Tax: My Opinion of the Supreme Court’s ObamaCare Decision

by pjamesbeardsley

My opinion on the ObamaCare ruling? If I were on the Supreme Court, I would have filed a separate dissenting opinion.

Actually, I’m not sure about that. I have not read any dissenting opinions from the Court. I wanted to judge whatever the majority opinion was on its own merits, not clouded by whatever merits exist in any existing dissenting opinions, and write my own. Any similarity this bears to the opinion(s) of Justices Kennedy, Alito, Thomas, and Scalia is purely coincidental. I’ll read their opinions immediately after posting this.

Dissent aside, I mostly agree with Justice Roberts’ majority opinion, including his thinly veiled shot at the law:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

He might as well have said, “This law stinks on ice. Even though it’s really stupid, the authority is not given to the Supreme Court to protect citizens from really stupid laws, just unconstitutional ones.” In fact, I really only have two problems with the opinion itself, one of which is of no consequence to the result.

We disagree about the extent of the Commerce Clause. He seems to be of the opinion that it gives Congress the authority to tinker with any and all existing commerce; I think it gives Congress and Congress alone the power to erect tariffs, subsidies, and standards and practices in commerce between states, foreign countries, and Indian tribes. I have absolutely no doubt that his thinking is more in line with the post-1937 Court; I have absolutely no doubt that my thinking is more in line with the Framers and the pre-1937 Court. However, we agree that neither the Commerce Clause nor anything besides Congress’ taxing power justifies the law.

Since I’ve already noted that my opinion would be dissenting, you’ve probably already guessed that Justice Roberts’ opinion and I disagree that Congress’ power to tax justifies the law. It should be noted: I don’t necessarily disagree that the Individual Mandate is a tax; I do disagree that if it is a tax, it’s a Constitutional one for the following reasons:

1. The Constitution makes clear that all federal laws that either raise existing taxes or impose new taxes, as Justice Roberts’ majority opinion said the Individual Mandate does, must originate in the House of Representatives. Even though the reason for this was made archaic by the 17th Amendment, it’s still very much a part of the Constitution. The Senate can no more originate bills for raising revenue than the House can ratify treaties or confirm Cabinet members or federal judges. The Patient Protection and Affordable Care Act originated in the Senate. Therefore, if it’s a new tax, it’s unconstitutional.

2. The power of Congress to tax is limited by Article 1, Section 2, Clause 3. All federal taxes fall into one of two categories: taxes that need to be apportioned (direct taxes), and taxes that do not need to be apportioned (indirect taxes).

What’s the difference? Direct taxes are taxes you cannot avoid. Merely by existing, you must pay them. Indirect taxes can be avoided: like federal taxes on tobacco, alcohol, or gasoline purchases. You pay them only if you choose to purchase those things, and you are free to not purchase those things. Direct taxes must be apportioned among the states according to their latest enumeration, indirect taxes may be, but need not be.

Here’s the question: if we accept that ObamaCare’s “penalty” is a tax, is it a tax that needs to be apportioned or not? Here’s the answer: it’s impossible to tell, because it’s unconstitutional either way.

If it is a tax that needs to be apportioned, then logically, in order to be Constitutional, it must be both a direct tax and actually be apportioned. If the Individual Mandate needs to be apportioned and meets the apportionment mandate of of A1S2C3, then medical insurance itself must be considered a tax.

Why is that? Because otherwise the possibility exists that the tax would have no respect for enumeration. If, say, 50% of New Hampshire chose to pay the “penalty” instead of buying medical insurance and only 5% of Mississippi did the same, the tax would not be apportioned. The only way the tax remains apportioned is if paying the penalty for not buying medical insurance is considered equivalent to buying medical insurance.

However, Congress alone has the power to lay and collect taxes (A1S8C1). Since the payment of medical insurance is collected by a private company not designated by Congress and does not directly raise revenue, medical insurance itself cannot be considered a portion of a direct tax. Since medical insurance itself cannot be considered a direct tax, the Individual Mandate does not meet the apportionment mandate of A1S2C3, and is therefore unconstitutional if it needs to be apportioned.

A counter to this argument is that Congress doesn’t collect taxes, the Treasury Department (a part of the Executive branch) does. Therefore, to say that taxes need be collected by Congress in order for the payment to be a tax is wrong, and it is possible that the purchase of medical insurance can be considered a tax.

While I would grant such an argument in and of itself, such reasoning defies the Court’s justification for the Individual Mandate being a tax at all. We must remember that the Patient Protection and Affordable Care Act does not refer to either the purchase of insurance or the penalty for not purchasing insurance as a tax. If it is a tax, it is because its conditions necessarily imply that it is a tax. In other words, you can call it “piano,” but if if it looks like a duck, walks like a duck, sounds like a duck, and both its parents were ducks, it’s a duck no matter what you call it.

Simply put, the purchase of medical insurance isn’t called a tax, and doesn’t look, walk, or sound like a tax. It didn’t originate as a tax, either. The Treasury Department has the authority to collect taxes on behalf of Congress because Congress explicitly delegated such authority to it; such is not the case with the purchase of medical insurance under ObamaCare. Taxes directly raise revenue for the government, the purchase of medical insurance does not. The purchase of medical insurance is a part of a voluntary, mutual agreement between two parties, taxes need not be voluntary or mutually agreed upon. Medical insurance existed before ObamaCare’s Individual Mandate, and wasn’t considered a tax beforehand. Simply put: the purchase of medical insurance cannot be considered a tax.

Since the purchase of medical insurance cannot be considered a tax, the Individual Mandate fails to meet the apportionment requirement of A1S2C3, and is therefore unconstitutional if it is a tax that needs to be apportioned.

If it is a tax that does not need to be apportioned, it must be an indirect tax. Therefore, it must be a tax on some type of activity. Since not buying medical insurance is inactivity, not activity (as the Court’s denial of the Commerce Clause justification confirmed), it is a direct tax and therefore must be apportioned. Since this contradicts the very premise of it being a tax that does not need to be apportioned, it is therefore unconstitutional if it is a tax that does not need to be apportioned.

3. As I’ve noted previously, the majority opinion in Roe v. Wade states that the word “liberty” in the 14th Amendment prohibits state laws from interfering with the doctor-patient relationship. The identical language in the 5th Amendment would prohibit the federal government from the same. The notion that Congress is allowed to pass such a law, even if it’s a tax, without a Constitutional Amendment or the Court overturning Roe v. Wade is inconsistent with that ruling.

Any of the above is sufficient for eliminating Congress’ taxing power as justification for the Individual Mandate in ObamaCare. All of the above just shows how lousy of a decision it was.