Which New Angle of Attack on Obamacare is Best?

In the Wall Street Journal, David B. Rivkin, Jr. and Lee A. Casey argue today that with the individual mandate in Obamacare now known as a tax rather than a penalty, it is vulnerable to a new constitutional argument:

ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court’s precedents require.

The geographic uniformity to which Rivkin and Casey refer is required by Article I, Section 8, which says that every species of tax not considered a “direct” tax must be “uniform throughout the United States.”  In the paragraph just prior to the one quoted above, the authors quote the Head Money Cases of 1884, which held (though one might read this as dicta, for reasons I won’t go into here) that a “tax is uniform when it operates with the same force and effect in every place where the subject of it is found.”

But it’s not at all clear that the choice of a state to opt out of a program that would make the alternative to paying the tax cheaper, or relieve affected persons of the taxpaying obligation altogether, renders the federal tax geographically non-uniform for constitutional purposes.  All persons similarly situated–unable or unwilling to purchase health insurance, while obligated either to do so or to pay a tax–will be subject to the tax.  The reasons for their being subject to the tax may be partly in the power of the state governments where they live–and the authority of states to make a choice that costs them something may itself be authorized by federal law–but that does not necessarily mean that the federal government has used its taxing power in a non-uniform manner.  In the Head Money ruling itself, the Court held that the tax in question (if it really was a tax, and not an exercise of the commerce power–oh, how the world turns), a 50-cent charge on foreign passengers entering the country at American seaports, was not invalid by virtue of its not applying to foreigners entering the country over land by rail.  “[T]he law applies to all ports alike,” the Court observed, and added: “Perfect uniformity and perfect equality of taxation, in all the aspects in which the human mind can view it, is a baseless dream, as this court has said more than once.”

Far more promising, I think, is the approach now being attempted by the attorney general of Oklahoma, as reported by Jillian Kay Melchior at NRO today.  Oklahoma, having opted out of the creation of a state-run health insurance exchange, is now relying on the statutory language of Obamacare itself (not a constitutional argument) to argue that individual citizens, and employers in the state, are completely free of the obligation to pay any of the taxes or penalties for forgoing insurance.  The IRS appears to be ready to impose a tax for which there is no basis in the statute in states like Oklahoma–and many others.  Challenging the mandate in this way looks more probable of success, to me, than the Rivkin-Casey argument on the Constitution’s uniformity clause.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More