Judge Scolds Administration for "Alice-in-Wonderland" Rhetoric on Health Care Mandate


While the health care overhaul was being debated, President Obama argued that the individual mandate, which requires all Americans to purchase health insurance or pay a penalty, was not a tax. But now that the provision has hit the courts, the administration's lawyers are arguing that it is constitutional because Congress has the power to impose the penalty under the Constitution's taxing power.

So which is it? According to Roger Vinson, the federal judge who ruled yesterday that parts of the multi-state constitutional challenge against the law could go forward, the mandate isn't a tax. Not for legal purposes anyway. He notes that although previous drafts of the law had explicitly referred to the provision as a tax, the final version calls it a penalty. And he quotes from a 1987 decision saying that  "[w]here Congress includes [certain] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted text] was not intended." He also writes that "Congress's failure to call the penalty a 'tax' is especially significant in light of the fact that the Act itself imposes a number of taxes in several other sections." Those provisions, he argues, show "beyond question that Congress knew how to impose a tax when it meant to do so."

We're all mad here!

Now, in arguing for the constitutionality of the mandate, the government had maintained that it's irrelevant whether the law actually uses the word "tax." If a provision counts as a tax, it counts regardless of the specific language employed by Congress. The judge agrees, but notes an exception: "This rule must be set aside when it is clear and manifest that Congress intended the exaction to be regarded as one and not the other." And in this case, Vinson says it's clear enough that because the law's authors changed the legislative text to call the mandate a penalty and not a tax, but allowed other provisions to continue being labeled as taxes, Congress intended the provision not to be a tax. He illustrates this in a footnote:

Suppose that after the Act imposed the penalty it went on to expressly state: "This penalty is not a tax." According to the logic of the defendants' argument, if the intrinsic nature of the penalty was a tax, it could still be regarded as one despite what it was called and despite the clear and unmistakable Congressional intent to the contrary. Such an outcome would be absurd. In my view, changing the word from tax to penalty, but at the same time including various other true (and accurately characterized) taxes in the Act, is the equivalent of Congress saying "This penalty is not a tax."

Moreover, Vinson says, Congress showed essentially no sign that it thought of the power as a tax. In addition to changing the language from tax to penalty in the final draft of the law, Congress relied solely on its power to regulate interstate commerce:

Congress did not state in the Act that it was exercising its taxing authority to impose the individual mandate and penalty; instead, it relied exclusively on its power under the Commerce Clause. The Act recites numerous (and detailed) factual findings to show that the individual mandate regulates commercial activity important to the economy….It further states that health insurance "is in interstate commerce," and the individual mandate is "essential to creating effective health insurance markets." The Act contains no indication that Congress was exercising its taxing authority or that it meant for the penalty to be regarded as a tax.

Vinson's decision starts by casting the debate in politically neutral terms, suggesting that reasonable people can disagree about the merits of the new law. But on the tax-or-not-a-tax point, he's not just clear, but rather scolding about the administration's rhetorical sleight of hand:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice-in-Wonderland" tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

The upshot of all this, of course, is that Vinson believes the mandate will have to be justifiable under the Commerce Clause. And that will have to wait. As Ilya Somin notes, Vinson cautioned that the question of the mandate's ultimate constitutionality "cannot be fully considered at this stage of the process." Does judging the mandate's constitutionality under the Commerce Clause make it more likely to be struck down? Perhaps: Much like the Virginia judge who ruled, in a separate constitutional challenge to the mandate, that "Never before has the Commerce Clause…been extended this far," Vinson also noted the unprecedented nature of the federal mandate. At the very least, that suggests that he views the provision as new and unusual. But as we saw last week in Michigan, a ruling based on the Commerce Clause is not a certain defense against the mandate.

Still, however Judge Vinson's eventual ruling turns out, it will likely not be final; the ruling will almost certainly be appealed, probably all the way up to the Supreme Court. And once there, those who hope to overturn the mandate will, at best, face long odds.

Jacob Sullum wrote about the crazy constitutional logic of the individual mandate here. Damon Root noted one legislator's lack of concern for the constitutionality of the mandate here and looked at how the mandate has revived debates about the Commerce Clause here.

NEXT: How Will Holder 'Vigorously Enforce' Marijuana Prohibition in California?

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  1. Yeesh. Now I remember why I didn’t go to law school.

  2. “”.” Those provisions, he argues, show “beyond question that Congress knew how to impose a tax when it meant to do so.”””

    My paycheck already knew that.

  3. Obligatory musical link.

    1. Powerful Grace Slick: who unfortunately grew up to be a dried-up lefty PETA hag.

      1. Like this “dried-up lefty PETA hag”


        1. That one doesn’t look dry.

    2. …and this


    3. Not a drug song!

      1. But it is a drug book!

  4. It’s like the legal battle over Social Security. When congress passed it they called SS insurance. Opponents believed congress did not have an enumerated power to create an insurance program. Eventually the Supreme Court ruled that SS was an income tax authorized by the 16th.

    1. So, actually the opposite. Still, it’s a little bit weird to argue that something functionally indistinguishable from a tax is not a tax because Congress said so. I mean, if Congress passed a law banning all political speech and said “this is not a law prohibiting speech”, would the Court let it by on First Amendment grounds?

      1. It’s like that Senator in “Sniper” – “The truth is what I say it is!”

        Never thought of “Sniper” as “art as life” before, but it’s getting close…

  5. ummm — how can it be considered interstate commerce when you can only purchase health insurance from companies “allowed: to sell in your state? I thought the progressives thought that allowing people to buy across state lines was a bad idea.
    Oh, crap, why do I even bother? I’m going for pizza and a beer……….

    1. And how can it be considered interstate commerce when I live overseas, and even though I am destined to use some health care system, it is physically impossible for me to use any US health care provider?

      1. I’m curious. Do you purchase health insurance from some other source, then?

        I ask because I wonder if, under the new health care law, we will see foreign companies offering catastrophic health insurance to Americans, set up so they will pay for major medical treatment in offshore locations like Singapore.

        The closest thing I’ve been able to find are state-based health insurance companies that offer some coverage for medical tourism.

        1. I happily pay the completely reasonable fee-for-service costs.

  6. ‘When I use a word,’ Congress said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’

    1. That pretty well sums it up.

    2. Let me be clear: sometimes a word is just word, and a sentence just a sentence. But what I do not accept is that people across this country see these words as just words, and the sentences as just sentences. These words and sentences speak to the nation, and the nation will take in their meaning. Even if they are just words and sentences.

      1. Damn. Wish I’d penned that.

      2. Ugh, the words “Barack Obama” next to “let me be clear” have become mental triggers. They instantly conjure the image of teleprompter screens, of rolled-up sleeves and tilted-up chins, all accompanied by the sound of that poseur’s atonal, unmusical, unrelenting shouting.

        I remain amazed at the idea of that crap ever being described as “charisma” and “magic.”

        1. Argh, I read it and saw that exact picture including a camera pan to some lady wiping tears from her eyes between applause because the hope and change is so beautiful for her to behold.

  7. If not buying insurance and growing wheat for your own consumption are interstate commerce, then everything is interstate commerce. I wonder how Obusha and his braindead supporters would feel about a law mandating the disclosure of everyone receiving an abortion, or a law restricting the number of abortions you can have. Those would be every bit as justified as this bullshit.

    (standard libertarian disclaimer applies)

    1. The bullshit reasoning in Wickard v. Filburn was that if the plaintiff was allowed to grow wheat for his own consumption then he wouldn’t have to purchase as much wheat on the market. Since wheat was a fungible commodity traded nationally, the plaintiff’s activities therefore affected interstate commerce, and were within the power of government to regulate.

      1. I’m aware of that. It only supports my hypothetical.

      2. Oh, what a tangled web we weave
        When we practice to deceive!

        … Hobbit

        1. That was from a different British author. That was Shakespeare, not Tolkien. Both brilliant though.

          1. “Shakespeare”, I figure it needs the quotes. Tolkien, on the other hand, was written by Tolkien, with no claims otherwise as far as I know.

      3. He wouldn’t have to purchase as much wheat on the market if he went on a diet, either. Apparently Congress can forbid him from doing so.

        1. And apparently Congress can force him to go on a diet, too, because his buying wheat might raise the price in the market.

    2. Unsurprisingly, that decision that even the most hardcore Democrats could not defend as being based on even the most deranged interpretation of the constitution, was decided by a court of 7 or 8 FDR appointees. They clearly did not follow any precedent, so it’s insane that any current court would hold it up as settled law.

  8. If this gets overturned by the Supreme Court, and the GOP makes the expected gains in November, Obama will be going down as the lamest motherfucker to inhabit the White House, possibly ever.

    That would be pretty hilarious.

    1. Obama will be going down as the lamest motherfucker to inhabit the White House, possibly ever.

      What about this guy?

      1. There’s also Harrison, who while not actually “lame” was only in office only 31 days.

  9. So I engage in interstate commerce when I don’t. Makes sense to me.

    1. errrr, yes.

    2. Apparently, according to the leftists on the court (and Scalia), its interstate commerce when you smoke pot you grew and do nothing else whatsoever too.

      1. Possibly the worst decision ever.

        A plant that congress has decided NOT to regulate by making it illegal, can be regulated by congress when it suits them for their drug warrior purposes. Government has its cake and is eating it too.

        Black is white, war is peace and all that.

  10. If you don’t get your ass off that couch and do something, you’ll find yourself faced with a penalty tax uh, amount charged by the United States government for failing to engage in interstate commerce!

  11. Strike it down with all of your might!

    1. You can’t win, citizen. If you strike me down, I shall become more powerful than you could possibly imagine.

      1. Just for the record, I’m on the Light Side, and you’re on the Dark Side.

        1. Join me, Pro L. You can destroy Team Red. The media has forseen this. It is your destiny. Join me and together we can rule the galaxy as father and son.

        2. Racist!!

    2. Anyone who is holding out hope of Team Red even trying to repeal Obamacare is deluded.

      They don’t want to repeal it; they want to improve it.

      Statist fuckers.

  12. Seriously though, the commerce clause is never going to be rolled back. There are about a billion cases saying the government can do whatever the hell it wants, there is really no point in arguing with it.

    The good news: the government probably isn’t going to last too much longer. Due to a dearth of individuals with access to calculators, the government has spent far more money then it can ever repay (Reason contributors keep talking about this like it is a bad thing for some reason).

    I say “why the hell not”. Who is responsible for the money? Congress? The president? They aren’t responsible for anything, unless they get caught giving a tiny kickback to someone or getting a sweetheart land deal. I don’t really see how “we the people” can be responsible either – that would be like a slaveowner’s creditor accusing the slaves of owing him money because of the bankrupt slaveowner’s overspending. The slaves would tell him to get bent!

    1. “Seriously though, the commerce clause is never going to be rolled back.”

      So you say. I think the Tea Party should make a push.

      1. Amending the Constitution is hard!

        1. The progressives managed it last century, several times over.

          1. You can do a lot when you appeal to the envy and resentment of the mob… and there was a lot of that back then.

            1. Yes, envy and resentment lead to banning alcohol and giving women the right to vote.

    2. Re: omg,

      Seriously though, the commerce clause is never going to be rolled back.

      Not this way, never. To “roll it back” would require a constitutional amendment that clearly defined and limited the scope of the interstate commerce concept. If it could also define and limit the scope of the “General welfare” clause and the “Necessary and proper” clause (which are NOT clauses, by the way, not by a strict reading of the paragraphs), it would take most of the “teeth” away from Congress.

      1. Something like: “No State shall make or enforce any law which shall impose barriers to interstate commerce that are not equally applied to intrastate commerce.”

        Bonus: Doesn’t actually grant any power to Congress.

        1. But it doesn’t take anything away, either:

          [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

          All your language does is put more restrictions on the states.

          1. FWIW, this eventually boils down to the quality of our politicians and trusting them to do the right thing and not expand their own power for power’s sake. Madison was all over this in Federalist 57 and it basically has turned out the opposite of how he said it would.

          2. Sorry, that was supposed to be combined with an amendment repealing the Commerce Clause.

  13. I don’t really see how “we the people” can be responsible either


    (a) You can, and will, be taxed to pay off part of this debt.

    (b) You use the currency, which can, and will, be debased to pay off the rest.

  14. Minor threadjack here, but I have to wonder why a soldier was ordered to destroy a video recording of Nidal Hassan’s rampage at Ft Hood.

    Why has this guy’s trial still not started? Why are we still determining if he is fit for trial? Geez, our justice system is fucked up, even in the military.

    1. On comcast this morning they said it had been going on for a few days already. Might be pre-trial stuff, though. I didn’t read it that closely.

      1. It’s a hearing to determine if he can stand trial, which is unbelievable based on his seemingly normal behavior leading up to his killing spree.

        This is another case of our government being afraid of insulting Muslims. I’m sorry, but this is an open and shut case. Trot out dozens of witnesses who saw it. Get the gun with his prints on it and the residue on his hands and clothes, show pictures of dead victims and rest your case. The jury or panel of judges (I’m not sure how it works under the UCMJ) would deliberate for about 30 minutes and they could hang him a few days later.

  15. The blond in the blue dress in the middle is hot.

    I would do her.

    1. I got pictures, but it’ll cost you 10 years of freedom to look at them.

    2. So would have Lewis Carroll…

    3. It’s a dude dressed up like a girl

  16. When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I want it to mean?neither more nor less.”

  17. Second-to-last link isn’t working.

  18. Look on the bright side. At least we’re to the point of reading and understanding it. Right Nancy?

    1. You may be presuming too much in terms of Nancy’s “reading comprehension” scores from grammar school.

      I think I’ll go a write a newsletter about how suspicious it is that they haven’t been disclosed yet.

  19. If it were a tax, it’d be a direct tax, and it’s not an income tax or apportioned among the states according to the Census. Which means it would be unconstitutional.

    1. Yup. The mandate is toast.

    2. Which means it would be unconstitutional.

      Which is why they changed the wording in the final bill.

  20. Ray, when someone asks you if you’re a god, you say ‘YES!’

  21. Ceci n’est pas une imp?t.

  22. Every time I lose faith in the courts, something comes along…

  23. It’s Obama’s way of holding to his campaign promise of “No raised taxes on those making whatever the fuck I determine is right and proper”. Nothing more, nothing less.

    It’s an attempt, however fucktarded, at keeping his word.

    The dude is dick cheese.

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