Health insurance

Commerce Clause, Tax Power, Whatever—Trust Us, We Have the Authority


As noted in today's morning links, the White House is now saying that ObamaCare's health insurance mandate is an exercise of Congress' Tax Power. But what happened to the argument that Congress could require every American to purchase health insurance as part of its authority to regulate interstate commerce? After all, that's what the Patient Protection and Affordable Act actually says, including the declaration that "the individual responsibility requirement…is commercial and economic in nature, and substantially affects interstate commerce." As Georgetown law professor Randy Barnett points out, the abandonment of the Commerce Clause argument is a pretty stunning turnaround from the Obama administration:

If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory? Maybe the administration lawyers confronted the inconvenient fact that the Commerce Clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a "penalty" enforced by the IRS. So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.

So what about the Tax Power argument? Here's Barnett again:

[C]alling this a tax does not change the nature of the "requirement" or mandate that is enforced by the "penalty." ALL previous cases of taxes upheld (when they may have exceeded the commerce power) involved "taxes" on conduct or activity. None involved taxes on the refusal to engage in conduct. In short, none of these tax cases involved using the Tax Power to impose a mandate.

So, like the invocation of the Commerce Clause, this invocation of the Tax Power is factually and judicially unprecedented. It is yet another unprecedented claim of Congressional power. Only this one is even more sweeping and dangerous than the Commerce Clause theory.

Read the whole thing here. Read Reason's coverage of the constitutional debate over ObamaCare here.


NEXT: The Republican Establishment Speaks

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  1. And yet they continue to insist that you’re crazy if you don’t trust the government.

  2. This is a big test, not so much of the Congress, but of judicial review.

    If the courts allow this individual mandate to go forward as either an exercise of the Commerce Clause or taxing authority, judicial review as a constraint on government power, not to mention the idea of enumerated powers, is officially brain-dead. Sure, the body will be kept on life support, and will occasionally twitch, but . . . .

    1. Judicial review will remain alive and well. The courts will continue to step in whenever a law violates a judges pet peeve. They’ll invoke Substantive Due Process or some other BS construction that they feel grants them authority.

      What will be dead will be the concept of Enumerated Powers. Sure, every 20 years you’ll get some random Massholio judge who makes an attempt to invoke the 10th, but that’ll be about it.

  3. The Constitution is just a goddam piece of paper.

    1. The Constitution has made its ruling, now let it enforce it.

      1. Pharoah sez: So let it be written. So let it be done.

          1. I say, old man, are you Creeping Death?

          2. Probably their best song ever…

  4. I’m going to go throw up….

    1. There’s a tax for that.

  5. Lowly Vizier (Rahm Emanuel): “But Sire, if we pass such a mandate, why, the Constitution will condemn us.”

    Lord Obama: “How many divisions has the Constitution?”

  6. I wonder whether ‘Citizens United’ and ‘MacDonald v Chicago’ were behind this midstream horse-switch. If the White House are afraid that Thomas and Scalia (mostly Clarence ‘Priveleges or Immunities’ Thomas) are in a mood to overturn precedent. Viscerally, Congress and the White House seem to like using the Commerce Clause, as an affirmation would only enhance their power, but they may think that Kennedy will be more on-board with a Tax argument.

    Time will tell…

  7. Pretty scary stuff when you think about it.


    1. No shit, anon bot!

  8. The question is not, nor has it ever been, whether the commerce clause really granted the power to do the mandate. It doesn’t.

    The question is, does the Supreme Court have the gonads to say so and put a kibosh on health care reform? Probably not.

  9. Republicans pulled this “we know what we’re doing, how FUCKING DARE you little schmucks question our judgement” horseshit every time they got the majority… and, like clockwork, the Dems pull the same rug over our eyes when THEY get the power back from the Republicans.

    It will ultimately be our undoing.

    1. Shut up and do what you’re told! Go suck Ron Paul’s cock, you filthy God-fag!

      1. Damn right we know better. You freaks with your insistence on “individuality” and “free markets” need to be taught a lesson, and soon… because TEH EXTERNALITIES are coming to roost.

      2. Tony when did you change your name to Max?

  10. Can anybody address this glaring inconsistency in the commerce clause interpretation:

    Growing wheat on your own property for your own consumption, and doing like wise with marijuana effects interstate commerce to such a degree that the federal government can regulate/ban the activities, yet aborting a child obviously has a profound effect on interstate commerce, and the courts have found the government has little ability to restrict that activity.

    It seems that some activites are so private, that even their substantial effect on interstate commerce is insufficient to allow their regulation by government. Other activites are private but not sufficiently private as to remove the possibility of their regulation by government. That defining line of privacy remains unidentified, unaddressed, and a large point of inconsistency in the law.

    1. J, the reasoning is that the feds can regulate plants grown and consumed on your own property because doing so doesn’t violate any of your Constitutional rights, but regulating abortions is a violation of your Constitutional right to privacy, just as regulating a newspaper would be a violation of the Constitutional right to a free press.

      I’m not saying I agree, mind you, but that’s how a SCOTUS that has abandoned any pretense of enforcing the enumerated powers works.

      1. A woman growing a baby in her uterus: that’s a potential democratic vote or republican taxpayer; won’t be private for long. A man growing drugs for private consumption: that’s just antisocial behavior that can’t be taxed. Never mind all the free (or taxpayer subsidized) drugs that are provided when a woman exercises “her right to privacy”.

    2. It’s simple: Democrats hate business and money the same way the GOP hates sex.

      That is to say, they hate it when anyone does it/has it but them…

      1. Unfortunately for Republicans, Clinton lied about an affair and not about something more mundane like ordering the assassinations of foreign diplomats or poisoning the water of third world countries. Democrats contend hat perjury is perfectly acceptable concerning sex. Republicans don’t care why or over what Clinton perjured himself, but feel perjury should apply nonetheless. Democrats do hate business, but conservatives really want to be left alone in all matters, even sexual ones.

        1. Not really. Most conservatives probably wouldn’t actively argue against, say, sodomy laws.

  11. Well, I guess I’ll give him some points for a little honesty. It’s bittersweet change from the usual.

  12. This involves intravaginal commerce.

  13. Sorry, I was responding to JLB’s comment on abortion. And it doesn’t seem as funny as when I posted it ……

  14. While the taxing clause would clearly apply, this doesn’t change the constiutionality of the law as enacted as revenue bills must originate in the house whereas this legislation origitnated in the Senate. I don’t know why so many people seem to miss this fact.

    1. Just wait for the “it’s a tax, but we didn’t intend it for the purposes of raising revenue” argument.

  15. Somehow, I think we’re going to see more do-overs like this as the grade-inflated, “A for effort” generation starts to populate Washington, D.C.

  16. Now, two months later, Paul leads in the polls, topping Democrat Jack Conway, the state’s attorney general, by seven points in Rasmussen’s latest survey.

    Ummm, no. Rasmussen has a big Republican house effect, so a seven point lead for a Republican in one of their polls indicates something closer to a dead heat.

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