June 28, 2012
Historian John Steele Gordon makes a compelling point about todays Supreme Court ruling in the Obama health care case:
Never before, that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you dont buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?
This seems a proper interpretation of what Chief Justice Roberts wrote in the decision itself. Consider some of his opinions most compelling paragraphs:
… the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.
The Affordable Care Acts requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
… it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congresss power to tax.
Where does Roberts find the linchpin of his argument that the mandate is simply a constitutionally justified form of taxation? He explains:
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes … That, according to the Government, means the mandate can be regarded as establishing a conditionnot owning health insurancethat triggers a taxthe required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.
Sure, redefine the meaning of terms like mandate and tax, and the phrase under that theory becomes like the accelerator on a juggernaut. The only consequence a phrase so pregnant and looming its sort of like the old line, Other than that, how did you enjoy the play, Mrs. Lincoln? Accepting that only consequence is like saying we should welcome incoming nuclear ordnance. It just makes a big noise, right?
In summary, heres how Mr. Roberts logic seems to operate:
(1) The mandate is, in fact, a tax.
(2) It is a tax on something people choose not to do, as noted by Gordon above.
(3) Congress has the constitutional authority to tax people at least those whose income Congress decides is adequately high - for something they elect not to do.
This is a phenomenal moment in constitutional interpretation: Now Congress has the power to tax a specific kind of volitional inactivity. This is amazing coming from a self-professed originalist like Mr. Roberts.
Those who believe the Constitution actually means what it says know that the taxing power of Congress extends only to those things (the Enumerated Powers) over which the legislative branch of the federal government has authority. How does something people decide not to do conceivably find its way into the Constitutions limited and specific list of federal duties?
As Gordon observes, the extension of this argument is both unlimited and frightening. If I choose not to exercise, will Congress force me to pay higher taxes because Im not doing enough to sustain my health? If I dont fly in airplanes, will I be taxed for failing to do my part for the American aeronautical industry? If I dont wear brightly-colored shirts, will I be taxed because I am insufficiently supportive of the U.S. vegetable dye industry?
However absurd such scenarios might now seem, their plausibility is strengthened by a Court that has decided that Congress possesses the constitutional authority to tax choices that involve conscientious disengagement from a particular form of conduct.
Abraham Lincoln once noted that we cannot escape history. Indeed. And when the history of this court and of our time generally is written, the new federal power - delivered with a whats the big deal? tone in the Chief Justices opinion - will be an inescapable chapter in the story of libertys diminution.