Is the Constitutionality of Obamacare (Merely) Semantic?

by Daniel Foster

Ezra Klein thinks whether the mandate is unconstitutional boils down to a question of semantics (which is another way of saying he doesn’t think it’s unconstitutional, but that’s no surprise.):

It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.

Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. . . . The principle conservatives are fighting for is that they don’t like the Affordable Care Act. 

I don’t think that’s quite right. It’s true that Congress’s power to tax is fairly plenary (so long as it is taxing income or levying Art. I, Sec. 9 direct taxes by population). So in theory, calling it a tax could get defenders of the law around objections from the limits of the Commerce Clause. But remember it was defenders of the law who draped the mandate qua penalty in the Commerce Clause in the first place, not opponents. Contra Klein, I’m sure many conservative jurists would be happy to fight the mandate out on liberty grounds.

But I also don’t think this is mere semantics — or it’s “mere” only in the Lewisian sense. ”Semantics” tends to get a bad name. In lots of contexts — computer programming, analytic philosophy, linguistics, and constitutional jurisprudence to name a few paradigmatic ones — semantics is serious business. I take it that what Klein was trying to express is that the constitutionality of the ACA comes down to word choice, but that’s true only insofar as those words  are connected to their referents via meanings determined by the context of their utterances, and that the relative fixity and coherence of these meanings make things like communication — and, again, constitutional jurisprudence — possible. For jurisprudential purposes, a tomato is a vegetable, not a fruit. That’s a purely semantic (and as it happens, factually incorrect) distinction, and a materially consequential one.  I don’t mean to sound obscure here, and I’m not shilling for textualism/originalism. I’m just pointing out that if there’s something more integral to the entire enterprise of judicial review than semantics, I don’t know what it is.

And in the case at hand, the semantics aren’t on Klein’s side. Forget for a moment that every federal court that has ruled on the ACA — even those that have upheld it — has ruled that the mandate is a penalty and not a tax (not least because the Democrats felt the need to cover their collective rear-ends by writing this into the bill: “The individual responsibility requirement provided for in this section . . . is commercial and economic in nature, and substantially affects interstate commerce”). Even if you could magically go back and change it, consider: It would be one thing if the ACA gave tax credits or other breaks to individuals who elected to purchase health insurance (Senator McCain’s health-care plan did a fairly mild version of this). I can’t think of an obvious case that that’s unconstitutional. But it would be quite another if the ACA raised every American’s taxes by x, and then offered a corresponding break of x to only those individuals who get health insurance. Merely calling it a tax and changing the enforcement regime wouldn’t change at all its underlying structure or its function. Supreme Court case law recognizes this. Quoting Randy Barnett:

In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

And for what other purposes would a hypothetical mandate qua tax exist but to coerce individuals into actions they wouldn’t otherwise freely choose, and to punish them for failing to take those actions? I’d feel fairly good bringing that case to Anthony Kennedy.

UPDATE: Ramesh sends me this further, substantive point from his iPhone (because getting into Catholic legal theory is just the sort of thing he does with his iPhone):

It’s not just semantics, because law (usually, and in this instance) has a morally obligating force. Catholic legal theorists especially (and rightly) reject a pure penalty theory of the law: a law that commands x is not merely saying that not doing x will incur a penalty. Where x is morally permissible absent the law,  the existence of the law (assuming a minimal level of legitimacy on the part of the legal system) makes x obligatory. I can do a cost-benefit analysis on a tax credit and reject it. I can’t in good conscience break a law and pay a fine even if it is in my interest to do so. That’s part of what makes the mandate so obnoxious.

I think that’s typically perceptive and absolutely right so far as it goes — a penalty has the force of moral sanction in a way a tax doesn’t. I say “so far as it goes” because I’m enough of a philosophical anarchist (that’s the only kind of anarchist I’m any kind of) to think that we have no moral obligation to obey unjust laws — though we may have contractual or other obligations to do so. But that’s another dull topic all together!