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.