I posted my initial response to the Court’s ObamaCare decision here as part of a larger symposium which includes Bench Memos regular Jonathan Adler. I conclude that the Court badly contorted the statute. The penalty for failing to comply with the mandate just isn’t a tax, and to argue that it is literally flips the statutory scheme on its head so to make the cart (penalty—er, I mean tax) the driving constitutional justification for the horse (mandate). While twisting a statute is better than twisting the Constitution, the question is whether the Court’s maneuver in this case created a roadmap for Congress to craft future penalties—er, taxes—through which the federal government may regulate in areas heretofore beyond its power, and do so without facing the political heat for crafting a “tax.”
The good news is that the Court’s decision on the Commerce Clause creates hope for some reasonable constitutional limitations on federal power. The bad news is that the taxing authority functionally may be broadened by the Court’s statutory legerdemain in ways that negate the effect of the “good news.” Need an example? Roberts himself offers a hypothetical concerning a mandate for individuals to purchase energy-efficient windows enforced by a tax. This example alone should sound the alarm regarding potential expansive new regulation by Congress using the taxing authority in ways similar to the “tax” in the twisted text of ObamaCare.