SCOTUS Reportedly Upholds Mandate As an Exercise of the Tax Power


SCOTUSblog reports that the Supreme Court has upheld the individual health insurance mandate as a tax, which makes my recent Reason essay along those lines suddenly relevant. SCOTUSblog says the entire Patient Protection and Affordable Care Act will stand, except that "the federal government's power to terminate states' Medicaid funds is narrowly read." Chief Justice John Roberts joins the left-leaning members of the Court in upholding the law.

More to come.

Update: Majority opinion quote via SCOTUSblog:

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A [the  "shared responsibility payment" due from people who fail to obtain government-prescribed medical coverage] under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

SCOTUSblog's Amy Howe says "the court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate." That is especially true in light of the law's weak enforcement mechanism.

It sounds like a majority of the Court (Roberts plus the four dissenters) agreed that the mandate does not pass muster as an exercise of Commerce Clause power. Four justices would have upheld the mandate on that ground as well.

The decision is here.

NEXT: Gillespie in Newsday: Cheer Up, Losers! Settle Down, Winners! SCOTUS Isn't the Last Word on Anything (Hooray and Alas)!

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Out of all the reasons they could have upheld it, that was the dumbest. No one was taking that argument seriously.

    1. Well, it is a serious argument. The main problem with the argument is that the Administration and Congress repeatedly lied and insisted that it wasn’t a tax. However, it isn’t all that different from other social engineering done through the tax code.

      I’d like to see that other social engineering thrown out, of course.

    2. You’re calling Jacob Sullum “no one?”

      I’m not surprised.

      1. OK, maybe I used a little hyperbole. But not about Sullum.

    3. This guy is going to be shocked:


  2. Obama just broke (again) one of his campaign promises.

    1. There’s a Romney campaign ad there somewhere.

    2. like his supporters will care

  3. Does this mean I can pay my taxes with broccoli now?

    1. No. But Congress can order you to buy broccoli and call it a tax.

  4. Sounds like Roberts is a statist-pussy. so no surprise there.

  5. So, GOP’s winning strategy now will be to commit to repealing Obamacare based on the strong opposition to it in the electorate. This ruling is worse than Kelo.

    1. While nominating the only other guy to have signed into law requiring a mandate.

      1. Yeah, I meant that ironically.

    2. No, striking down the Obama Tax Increase. Extend the Bush Tax Cuts, strike down the Obama Tax Increase. Workable campaign strategy.

  6. Bummer.

  7. Im betting the Thomas dissent is going to be full of awesome. Maybe not as much as his Raich dissent, but it will be up there.

    1. Kennedy would have struck the entire thing down.

      The 4 liberals would have upheld under Commerce Clause.

      Roberts controls, as the one splitting hairs.

      1. Shouldn’t that be the five statists voted to uphold it?

  8. Amy Howe: The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.


    1. hasn’t the government always maintained that taxes are paid voluntarily?

    2. Does that mean you refuse to pay the tax and go to jail?

      1. Jail? Don’t be ridiculous.

        They can only withhold IRS refunds.

        1. The IRS does have the power to recommend criminal prosecution in general.

        2. But in this particular case, their authority was limited.

          People can adjust their W-4s a bit, those that don’t already prefer to slightly underpay, which would be interesting.

    3. Updated:

      Apologies – you can’t refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.

      1. Probably right.

        I suppose this means that we can look forward to the abortion tax at some point.

        1. You mean the non-abortion tax that is waived if you don’t get an abortion.

    4. IIRC, while it’s a tax, there was some issue about the law not really giving the IRS authority to enforce the tax independent (and Congress/the current House refusing to do so.)

      Let me search.

      1. Though as I recall, the Administration was trying to set aside money to enforce it even so. And the IRS has a lot of ways to get money, such as taking money out of refunds, and so on.

      2. Ah, I see that Jacob above has linked to his own article on the subject of difficult enforcement.

    5. Im thinking that is a mistyping (I saw that too and was confused). Im guessing the meaning is that you can choose to just pay the tax, you dont have to comply with the mandate.

      1. Nephilium beat me to it above.


  10. “KENNEDY(reading the dissent): In our view, the entire Act before us is invalid in its entirety.”

  11. Why isn’t effectively redrafting the law so that it imposes a tax (soemthing that it explicitly did not do, and which Congress was very clear it did not do) judicial activism?

    1. Especially considering their ruling in the Stolen Valor Act on the same day, where Kagan and Breyer made it clear that the law could be upheld if rewritten, and that plus the dissenters would give a majority to uphold it.

      Instead, it was tossed. (A ruling I agree with, on first blush.)

  12. We had a good run, 225 years. Now it’s over. Where do I report for my chains?

  13. I did not see that coming. Apparently, Kennedy joined Alito, Thomas, and Scalia in dissent, and the actual decision to uphold was the four liberal horsemen plus Roberts.

    Roberts was the fifth vote, not Kennedy. But, I’m sure the opinions are a total hash, and the initial vote count could be wrong.

    1. If that’s the vote, that leaves Kagan exposed as the deciding vote after all. I will be disappointed indeed if nothing is made of that, but I have been very surprised at the total lack of interest in the illegitimacy of her participating in this case at all.

  14. One more:

    So what happens when the law is amended (and it will be) to put the full enforcement power of the IRS behind the mandate, so that refusing to pay the penalty can indeed lead to liens and, ultimately, jail?

    1. Well there *is* free health care in jail…

  15. Absolutely unfettered power. What could go wrong with that?

    I’m a fatty. How long till mandatory diet and exercise rules are passed? After all, my belly is affecting interstate commerce.

  16. It was a grand experiment while it lasted. The slippery slope is now a gaping chasm.

Please to post comments

Comments are closed.