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.