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The Mandate As Tax



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Chief John Roberts may have flinched from doing what his fellow Republican-appointed justices were willing to do — strike down the individual mandate as a violation of the Commerce Clause — but he did so in a clever way. He resurrected an earlier argument, one the Obama administration had mostly abandoned, that the mandate was really a tax rather than a regulation. No one denies that Congress has the power to levy a nationwide tax, so the core of the president’s legislation survives even though Roberts and the conservatives sided with the plaintiffs on the main constitutional claim about the limitation imposed on federal regulatory power by the Commerce Clause.

But it does so at a significant political cost. First, those who dislike the mandate — which includes a majority of U.S. voters — will now have no recourse but to vote for Mitt Romney to repeal it. Second, the only way the administration prevailed was to have Obama’s main legislative accomplishment redefined as one of the largest middle-class tax increases in the history of the country.

Does that really sound like a good political outcome to you?



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