The Court Twists ObamaCare to Save It

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.

Robert Alt — Robert Alt is the president and chief executive officer of The Buckeye Institute.

Most Popular

Culture

Courage: The Greatest of Virtues

Dear Reader (Or Listener), As the reporter assigned the job of writing the article about all of Sidney Blumenthal’s friends and supporters told his editor, I’m going to have to keep this short. I’ve spent most of every day this week in a studio recording the audiobook version of my dead-tree/pixel ... Read More
Immigration

My American Dream

This morning, at 8 a.m., I did something I’ve wanted to do for as long as I can remember: I became an American. I first applied for a visa in early 2011, and since then I have slowly worked my way through the system — first as a visa-holder, then as a permanent resident (green card), and, finally, as a ... Read More
U.S.

The Gun-Control Debate Could Break America

Last night, the nation witnessed what looked a lot like an extended version of the famous “two minutes hate” from George Orwell’s novel 1984. During a CNN town hall on gun control, a furious crowd of Americans jeered at two conservatives, Marco Rubio and Dana Loesch, who stood in defense of the Second ... Read More
Religion

Billy Graham: Neither Prophet nor Theologian

Asked in 1972 if he believed in miracles, Billy Graham answered: Yes, Jesus performed some and there are many "miracles around us today, including television and airplanes." Graham was no theologian. Neither was he a prophet. Jesus said "a prophet hath no honor in his own country." Prophets take adversarial ... Read More
Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More