Obamacare

The ObamaCare Penalty That Isn't

Even if Congress can't regulate you, it can tax you into submission.

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On Monday U.S. Solicitor General Donald Verrilli told the Supreme Court the "shared responsibility payment" required of Americans who fail to obtain government-approved medical coverage is not a tax. On Tuesday he said it is.

In the first instance, Verrilli was urging the Court to address the constitutionality of the individual health insurance mandate in spite of an 1867 law that ordinarily bars legal challenges to taxes that have not been collected yet. On the following day, he was arguing that, even if the mandate cannot be justified as a regulation of interstate commerce, it is a legitimate exercise of Congress's tax power.

Justice Samuel Alito seemed skeptical on Monday, asking Verrilli, "Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?" Whether or not the Court is prepared to accept that confusing claim, the tax argument suggests how little is at stake in this case when it comes to enforcing substantive limits on the federal government's powers.

If the Supreme Court agrees with the U.S. Court of Appeals for the 11th Circuit that the insurance mandate cannot be justified as a regulation of interstate commerce, it may be "a huge symbolic victory for limited government," as Georgetown law professor Randy Barnett says. But it will still leave in place an absurdly broad reading of the Commerce Clause generous enough to allow virtually everything Congress has tried to do under this pretext since the New Deal. And if the Court overturns the mandate, enacting a revised version that passes muster would be legally straightforward (though politically difficult), thanks to the enormous power that Congress wields under its tax authority.

The 11th Circuit concluded that "the individual mandate as written cannot be supported by the tax power." It emphasized that the Patient Protection and Affordable Care Act, which imposes the mandate, repeatedly calls the money owed by uninsured taxpayers a "penalty" while calling various other levies "taxes." It noted that legislators had originally called the payment a "tax" but deliberately changed the terminology, indicating that "Congress intended to impose a penalty for the failure to maintain health insurance."

How could this problem have been avoided? The U.S. Court of Appeals for the 6th Circuit, which also rejected the tax power justification for the mandate, suggested Congress "might have raised taxes on everyone in an amount equivalent to the current penalty, then offered credits to those with minimum essential insurance." Alternatively, "it might have imposed a lower tax rate on people with health insurance than those without it."

Judge Brett Kavanaugh, who dissented from a decision by the U.S. Court of Appeals for the D.C. Circuit that upheld the mandate on Commerce Clause grounds, argued that "just a minor tweak to the current statutory language would definitively establish the law's constitutionality under the Taxing Power." All it would take, Kavanaugh said, is a clarification that Congress is merely using the tax code to "incentivize certain kinds of lawful behavior," as it routinely does, rather than imposing an outright requirement.

In other words, Congress could accomplish exactly the same thing by wording it a little bit differently. The response to that possibility from the states challenging the insurance mandate—that making income tax liability hinge on the purchase of health insurance amounts to "an unconstitutional direct tax"— seems pretty weak, given the myriad ways in which the tax code is used to encourage politically preferred actions such as adopting children, going to college, buying a house, giving to charity, driving an electric car, and even obtaining health insurance (through one's employer).

We might wish taxes were used simply to pay for the government's legitimate functions, but that is not how things are. In 1819 Chief Justice John Marshall observed that "the power to tax involves the power to destroy." As currently interpreted, it also involves the power to manipulate us into submission.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

© Copyright 2012 by Creators Syndicate Inc.

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55 responses to “The ObamaCare Penalty That Isn't

    1. Would you be autonomous and sovereign, sitting in a mud cave with pendulous breasts grinding soup stones for eons?

      Thank progress for city-Statism (civilization!)

      Historically, people in non-state societies are relatively autonomous and sovereign. They generate their own subsistence with little or no assistance from outside sources. They bow to no external political leaders.

      ~Elman R. Service (1975), Origins of the State and Civilization: The Process of Cultural Evolution. New York: Norton.
      NON-STATE AND STATE SOCIETIES
      http://faculty.smu.edu/rkemper…..ieties.pdf

      Fibertards dream to be autonomous and sovereign, but petulantly reject evidence of the only society, i.e., Non-State society as it was for millions of years, that proved as autonomous and sovereign as they wish for.

      Yep, they’re that retarded.

      1. Like, yeah, cuz its not like nation states ever “worked” in the sense that individuals have MORE liberty and are MORE sovereign and enjoy MORE peace and sufffer LESS murder or something.

        1. Hey, plush cells are MORE comfortable and MORE peaceful than solitary confinement.

          But you’re still in prison. And just because the city-Statist prison wardens let you trade a few trinkets and “privatize” (hehe) the prison cafeteria so a few trusties can make out like bandits, doesn’t mean you’re free.

          But the trusties would like you to think so.

          1. But, but how will we fight off the aliens from Nebulon 5 without adequate technology when they come to harvest us?!?!?!? Throw rocks at them? I mean come on…

  1. Another cause for seriously considering secession in the event that the next few administrations, at most, fail to at least start reversing the tyranny of the federal titan.

    1. No! Government is good, and too small. You’re just too stupid to understand. Free healthcare?

    2. Secession? You and what army?

      Systematic peaceful non-compliance would be the way to go. It has worked wonders in the past.

      1. A hundred thousand middle-class people refusing to pay taxes might get noticed.

        1. *sound of a magazine being loaded*

          Good, I need the practice.

          1. *sound of a hundred thousand magazines being loaded*

            1. *sound of a tactical nuclear warhead whizzing through the air*

            2. *sound of a hundred thousand magazines being loaded*

              Each one of which will be dealt with individually by a SWAT team, and killed if the opportunity arises.

              1. Each one of which will be dealt with individually by a SWAT team

                Wow! ObamaCare does create jobs!

                1. sarc- do you think that the SWAT boys will continue to do their thing when their master goes broke AND the number is not one hundred thousand, but ten million?

                  1. Libertymike|3.28.12 @ 9:30AM|#
                    …their master goes broke…

                    Wall Street go broke? The Chamber of Commerce broke? Teh Koch?

                    hahaha! They ain’t going broke, dipwad, America is a company town now.

                    You load sixteen tons, what do you get
                    Another day older and deeper in debt

                    For the love of money [POLIS’ privation property values] is the root of all evil [POLICe brutality.]

                  2. do you think that the SWAT boys will continue to do their thing when their master goes broke

                    Yes. SWAT boys do their thing because nobody will stop them. Power is fun.
                    If their current master goes broke (or admits to being broke, since IMO they are already broke), then they will simply offer their services to another master.
                    They don’t give a shit who they serve as long as they have the power to commit acts of violence upon people who are powerless to fight back.

                    the number is not one hundred thousand, but ten million?

                    Never gonna happen. Too many people are dependent upon government either directly or indirectly for any real resistance to occur, and even if they did they would be so divergent politically that any such resistance would be completely disorganized and easy to quell.

                    The American experiment in liberty has failed.

                    1. sarcasmic|3.28.12 @ 9:46AM|#

                      The American experiment in liberty has failed.

                      Allow me to quote your Libertard buddy.

                      Libertymike|3.28.12 @ 9:27AM|#

                      Like, yeah, cuz its not like nation states ever “worked” in the sense that individuals have MORE liberty and are MORE sovereign and enjoy MORE peace and sufffer LESS murder or something.

                      City-Statism (civilization) is getting MORE better every day, dipwad.

                      And I’m not counted as 3/5ths of a nigra these days. Hell, they even let me vote MORE like you white muthafukahs.

                    2. While there is no credible basis to disagree with your last sentence, the fact is that even evil empires do come to an end.

                    3. the last post was in response to sarc.

                      White Indian, who here, or more accurately, who here of all of whom you would call libtards, has been the most polite to you?

                      Anarcho-free enterprise-individualists are the closest to being your friend as is humanly possible.

                    4. the fact is that even evil empires do come to an end.

                      Only to be replaced with new ones.

                    5. sarcasmic|3.28.12 @ 10:01AM|#

                      Only to be replaced with new ones.

                      Maybe. Maybe not.

                      Ever consider the Transient-Pulse theory of Industrial Civilization [city-Statism]?

                      The Olduvai Theory:
                      Sliding Towards a Post-Industrial Stone Age
                      Richard C. Duncan, Ph.D.
                      Institute on Energy and Man,
                      June 27, 1996
                      http://dieoff.org/page125.htm

                    6. Libertymike|3.28.12 @ 9:56AM|#

                      …evil empires do come to an end.

                      ya think? Now you talkum like big chief white injun.

                      The Final Empire: The Collapse of Civilization and the Seed of the Future
                      William H. K?tke
                      http://www.rainbowbody.net/Finalempire/

                    7. Indeed, man does not live on bread alone. In fact, man would be a lot better off without bread altogether as he should be going PRIMAL!

                    8. Given the modern attitude towards some tax-reform advocates, mass refusal to pay taxes might be seen as a terroristic threat, or even an attempt to take over the country.

                      Hell, a FairTax sticker on your car can be probable cause for a cop:

                      http://www.scribd.com/doc/1329…..t-20Feb09-

                    9. Is there anything that isn’t probable cause?

                    10. Not in Obama’s World. Especially if you’re not a Team Blue player.

              2. Sure, all those SWAT teams will fan out carefully and encircle their chosen targets in little tight perimeters, then wait for the moment when they can take him out with minimal risk of sustaining casualties.

                But they might be surprised to notice that while all of their attention is facing in, a greater threat is growing from without. They might find themselves needing a couple extra SWAT teams just to guard their own backs.

                And these guys aren’t exactly Caesar – capable of surrounding Vercingetorix while simultaneously holding off a relief army. No, they’d be sitting ducks.

        2. A hundred thousand middle-class people refusing to pay taxes might get noticed.

          City-Statism (civilization) will crush you. It’s been tried a thousand times in ten-thousand years of city-Statism.

          If you are a person who enjoys freedom, you lost. Just like the Indians.

          Deal with it, and enjoy the best that city-Statism (civilization) has to offer.

          1. …the Indians lost, and should just deal with it.

            1. We can’t listen to this guy or we too will be like the Indians… We need advanced technology provided by ‘city statism’ to fight off the aliens from Nebulon 5!!!

      2. Gandhi was blessed by the accident of history: Brits did not have drones.

        1. But the machine gives us freedom!

      1. Hey, I tried to warn you all back 2000 years ago.

        –Saint John the Divine

      2. good old john titor. I haven’t though about him in quite a while.

  2. Okay, but Congress would still have to pass a new law, right? And the chances of that happening again are extremely slim, if not nil. Just look at all the shenanigans they had to pull to pass it the first time, and that was under almost optimal conditions for Democrats.

  3. I repeat my comment from yesterday:

    Hey Linda Greenhouse, do you still think this case is a slam dunk?

    1. Are you serious? Are you serious?

      Commerz Klaus!

      Christfags.

      1. Stop picking on my brother Commie!

  4. MANIPULATE IN2 SUBMISSION!

  5. was it my imagination or does Verrilli remind you of the defense attorney in ‘My Cousin Vinnie’?

  6. In other words, Congress could accomplish exactly the same thing by wording it a little bit differently.

    Doubleplusgood.

  7. See that dude is like totally getting his wolf on man, I mean heck yeah!

    http://www.Anon-Works.tk

    1. spam, spam, spam, spam, wonderful spam…

  8. Jacob, no they can’t tax us into submission, if…IF we’re going to argue in the context of the US constitution. To say so would be to distort the taxing clause as much as the commerce clause. The tax clause is limited by the following clause “to pay the debts provide….”. Then further arguing constitutionality, is the understood necessity of reasonableness, meaning that the congress could not just tax any amount, but have to justify it and actually use it under the enumerated powers.

    That’s all beside the point though as the USC is a long dead instrument, and anyone who says otherwise is either ignorant or lying.

    1. You’re retarded enough to think the gummit is what you dream it should be.

      It’s not.

      The government is just middle-management for the rich elite capitalists that you so dearly love.

      The gummit is just a cut-out man for the massive amounts of aggression necessary to keep capitalism going.

      Only useful idiots believe the gummit is the problem, and the rich elite are innocent, or even victims.

      1. I’m retarded?? Who’s the dumb ass with no reading comprehension? I said the USC is a long dead instrument, not that I somehow believe in finding enough people with integrity who would actually confine themselves to the limits of the USC.

        Shame of is, I knew some dumb ass would fail to understand my clarifying sentence.

        1. WI never stops to think about the despotsim of NON-capitalist governments… then again, WI is a fucking fool who probably cheers when he hears about how North Koreans are treated by their government.

    2. To say so would be to distort the taxing clause as much as the commerce clause.

      And what makes you think a government that would distort the latter wouldn’t distort the former just as much?

      1. From where in my comment did you get the idea that I thought so? I was merely pointing out the flaw in Sullum’s reasoning, that if, IF, the USC mattered and was adhered to neither clause could be used to justify an expansive government. IF…IF..if the USC was actually properly administered the federal government would likely be about 5% of it’s current size and have almost nothing to do with individuals.

  9. Britain Deserves Better

  10. citizen: Hello?
    Peggy: Helloh, dis iz Peggy!
    citizen: Yes?
    Peggy: We have special offer today.
    citizen: Not interested.
    Peggy: Wait, it is FREE Health Care!
    citizen: Free?
    Peggy: Yes, Iz Free!!
    citizen: Free.
    Peggy: Yes.
    citizen: Bullshit. Nothing is free.
    Peggy: No. is free.
    citizen: Who is going to pay the Doctor?
    Peggy: Doctor. Free.
    citizen: Who is going to pay for the medicine?
    Peggy: Medizine. Free.
    citizen: Who is going to pay for the Hospital?
    Peggy: Hospital. Free.
    citizen: Bullshit. The Doctor ain’t gonna work for free, the drug companies are not going to give away the pills and the Hospitals need maintenance and utilities.
    Peggy: Government pay. Not you.
    citizen: Bullshit. Where do you think the government its the money from?
    Peggy. I see. Need retraining.
    citizen: You gonna get hit with the bat again?
    Peggy: No. YOU go for retraining. Bye Bye.

  11. the author states; Alternatively, “it might have imposed a lower tax rate on people with health insurance than those without it.”
    Sorry, but this would violate the equal protection clause.

  12. If the government has the power under the commerce clause to prevent me from possessing a specific LEAF, then surely the government has the power under the commerce clause to prevent me from abstaining from buying health insurance. If you oppose Obamacare, you better oppose the Controlled Substances Act too. Because if the federal drug war (at least the possessory prohibitions contained therein) is constitutional, then so is Obamacare. I think they’re both unconstitutional, but your average Republican psychological pedophile, constantly blabbering about “the children” certainly disagrees… making them hypocrites in addition to pedophiles.

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