The Corner

White House Admits That the Mandate Is a Penalty, Refuting the Supreme Court’s Decision

In this video from Fox News Sunday, the White House chief of staff insists over and over again that the individual mandate is not a tax on the middle class, but rather only a penalty meant to enforce the individual insurance mandate. But the Supreme Court made it crystal clear that as a tax penalty, the mandate would be “a legal command to buy health insurance,” and would be unconstitutional. It is well settled that if a government mandate can’t be justified on the basis of the Commerce Clause or any other enumerated power, then any penalty meant to enforce compliance with the mandate is also unconstitutional. The thin reed on which Obamacare survived was the Court’s holding that the tax is so modest that it does not rise to the level of a tax penalty. That was wrong, as everyone from Richard Epstein to the White House chief of staff agrees. Big or small, this is a tax penalty whose sole purpose is to enforce a legal command to buy health insurance. 

Even if Chief Justice Roberts found a way to pretend that it’s not a penalty, the White House can’t deny it and apparently doesn’t even want to. (It’s easy to see why: They have to justify it against the charge that it’s just a tax increase). But there the White House is making a fatal concession: If it insists that the individual mandate is a penalty, it is completely undermining the only basis on which the law was upheld. In essence the White House now officially agrees with the dissent in Obamacare. However unwittingly, it is admitting that the mandate is unconstitutional and should have been struck down.  

Mario Loyola — Mr. Loyola is a senior fellow at the Competitive Enterprise Institute and director of the Environmental Finance and Risk Management program of Florida International University.


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