Yesterday the Supreme Court heard argument about whether the health insurance mandate is or is not a “tax”. If it were a “tax” then this legal challenge might be three years premature. If it were a “tax” we would be talking about the taxing power in addition to the commerce power. If it were a “tax”, it would be much harder to attack this law. So why isn’t it a “tax”?
That’s a question well worth looking at. Some of the judges who heard the cases in the lower courts figured out the obvious – that the mandate could easily have been restructured in the language of a “tax”. In fact there would be no practical difference. The current law says you pay a penalty if you don’t buy health insurance. But the law could have required you to pay a “tax” and then given you a credit if you bought health insurance. Same financial result. So why isn’t it a “tax”?
The answer is obvious. The word “tax” is toxic. Some of the members of Congress couldn’t deal with imposing something called a “tax.” But they were able to agree to a something called a “penalty.”
Now that we have a penalty, the Supreme Court can be unloosed on this rhetorical battle to slay the penalty even though it is the same as a “tax” except you can’t call it a “tax”. You couldn’t tax the people, so you couldn’t pass this bill under the taxing power, so it’s an exercise of the commerce clause, and the Supreme Court has been trying to narrow the meaning of the commerce clause to where it was long before we became a great international power, long before we became a massive integrated economy. You can’t call it a “tax” so now it’s vulnerable. We could have solved one of the major problems of our country, but maybe we didn’t, because the word “tax” is toxic.
And because the word “tax” is toxic we have been pushed into a huge deficit that we didn’t have just twelve years ago, a deficit that the people who brought it on are now campaigning against so that the other party can’t play fast and loose with deficit spending the way the Bush Administration did.
So why can’t the Court look past the words and look at what the Affordable Care Act actually does. Why do these nine folk in their majestic black robes get to play a child’s game with dirty language? The realist in me wants them to poke through the linguistic folderol to the actual transactions. The realist in me wants them to identify whether Congress could do this thing with the right words and stop playing games with dirty words and toxic taxes. The patriot in me thinks that’s what a Supreme Court ought to do.
Are there any statesmen on the Court? Enough to see through this political charade? Not a chance.
— This commentary was broadcast on WAMC Northeast Report, March 27, 2012.
Constitutionalism and Democracy 
I do not think it would constitute judicial activism to strike down the unconstitutional provisions of this law, and insist that the “strong majority of a democratically elected Congress” (I’m using the President’s words of yesterday) go back and pass a law that accomplishes the same things without violating the Tenth Amendment or extending Commerce Clause jurisprudence to a place it’s never been: market creation to permit market regulation.
Levy a tax at the Federal level to fund an expansion of Medicare to cover the uninsured! Perfectly Constitutional, just like Medicare and Social Security are. But such a Medicare expansion would look like a tax increase, which some Congressmen and Congresswomen and their constituents can’t abide. So, there would be no “strong majority of a democratically elected Congress” for that concept. I guess that we can thank the unthinking people who signed Grover Nordquist’s nonsensical no-tax pledge and now fear retribution for this. Such an expansion of Medicare would expand that single-payer system. I neither worship private markets nor condemn government programs — some work and some do not. I don’t see how Medicare doesn’t work. Just expand it, folks.
Is it worth subverting our history and traditions on Federalism, States’ rights and individual liberties so that this Congress can take the easy way out? I don’t think so. I don’t want a more powerful Federal government using States as puppets, nor do I want the increasingly dysfunctional and morally corrupt Congress making more poorly-planned decisions that affect my life directly. I leave that to Gov. Cuomo and my town and county supervisors. They’re accountable to me in a way that Federal actors never are. I want people who affect my life directly to live in my community or my State, or at least to have an office there!
I feel completely betrayed by Congress. People desperately need affordable health care insurance alternatives. This is a crisis! If the individual mandate is struck down, as it should be in accord with Constitutional principles and precedent, this need will not be met. It’s tragic and it was completely avoidable if our Congress and President had worked together.