Just one week after the Obama administration celebrated the sixth anniversary of the passage of the Affordable Care Act, many people are still shaking their heads at the Supreme Court’s 2012 decision upholding the law’s individual mandate. How could the court decide an unconstitutional financial penalty was somehow legitimate as a “tax”?
As a constitutional historian and former law professor, the question continued to nag me and eventually drew me into the latest of my long series of investigations of the Constitution’s true meaning. That investigation has just been published by Case Western Reserve University Law Review.
After reviewing the historical evidence, here’s what I found: Chief Justice John Roberts’ opinion upholding the Obamacare penalty did not include just one mistake; it included three.
The court admitted if the Obamacare penalty is only a penalty, it should be rejected as an unconstitutional overreach. The Constitution authorizes Congress “To lay and collect Taxes, Duties, Imposts and Excises,” so if the court was right to label the penalty a “tax,” a legitimate argument could be made in favor of the mandate. Was the court correct to treat the Obamacare penalty as a “tax”? Not at all.
When the Constitution uses the word “tax,” it means a financial charge imposed mostly to raise revenue. The Obamacare charge raises a small amount of revenue, but its main purpose is to force people to buy health insurance. For constitutional purposes, that disqualifies it as a tax. Deciding it was a tax was Justice Roberts’ first mistake.
As a constitutional historian and former law professor, the question continued to nag me and eventually drew me into the latest of my long series of investigations of the Constitution’s true meaning. That investigation has just been published by Case Western Reserve University Law Review.
After reviewing the historical evidence, here’s what I found: Chief Justice John Roberts’ opinion upholding the Obamacare penalty did not include just one mistake; it included three.
The court admitted if the Obamacare penalty is only a penalty, it should be rejected as an unconstitutional overreach. The Constitution authorizes Congress “To lay and collect Taxes, Duties, Imposts and Excises,” so if the court was right to label the penalty a “tax,” a legitimate argument could be made in favor of the mandate. Was the court correct to treat the Obamacare penalty as a “tax”? Not at all.
When the Constitution uses the word “tax,” it means a financial charge imposed mostly to raise revenue. The Obamacare charge raises a small amount of revenue, but its main purpose is to force people to buy health insurance. For constitutional purposes, that disqualifies it as a tax. Deciding it was a tax was Justice Roberts’ first mistake.
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