Obamacare and the personal insurance mandate

Last November I did a post on the differing legal justifications advanced by the Democrats in support of the mandate that everyone must buy insurance or pay a penalty.  Steny Hoyer (D. Md.) insisted it was the power to tax, whereas Nancy Pelosi (D. Ca.) insisted it was the power to regulate interstate commerce.  And, as we now know, Congress decided to side with Ms. Pelosi by devoting 3 pages of the bill explaining that the mandate was constitutional based upon it’s interstate commerce powers.  At the time, I opined that although I didn’t agree with either position, I felt that the power to tax was the stronger argument.  But, Congress didn’t consult with me.

It now appears that they should have.

There is a marvelous piece in today’s Wall Street Journal written by Randy Barnett, a Constitutional law professor at Georgetown, that explains that Obamacare supporters are now having a change of heart.

On March 21, the same day the House approved the Senate version of the legislation, the staff of the Joint Committee on Taxation released a 157-page “technical explanation” of the bill. The word “commerce” appeared nowhere. Instead, the personal mandate is dubbed an “Excise Tax on Individuals Without Essential Health Benefits Coverage.”

But, as Professor Barnett points out,

This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.

So why is this so significant, you ask?  Professor Barnett supplies the answer.

Never before has the [Supreme] Court looked behind Congress’s unconstitutional assertion of its commerce power to see if a measure could have been justified as a tax.

In other words, the Supreme Court doesn’t scour the Constitution looking for a clause that could make a  law constitutional.  The Justices look solely to what Congress has written.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Dimsdale on April 29, 2010 at 2:12 pm

    It boggles the mind to think that these demonstrable dummies, who never read the bill, much less the Constitution, would try to defend it based on faulty premises.


    Remember the old computer saying "garbage in, garbage out"?  Well, when you elect garbage, legislative garbage comes out.

  2. kateinmaine on April 29, 2010 at 4:40 pm

    one wonders, with the addition of another activist judge to the court, will legislating from the bench have another go. . .

  3. winnifredthewoebegon on April 29, 2010 at 5:25 pm

    So, let me see if I understand this correctly, SOS…(please be tolerant, it's been a long day!)

    The Constitution has been supplanted with Congress where the Supreme Court is concerned?

    If I did understand properly, then,  the Constitution really has been balled up and tossed out, hasn't it?  And if that's the case, what purpose does the Supreme Court even serve if they just sit there interpreting what Congress wants them to & how they want them to?

    I think my head is going to explode…

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