Seems like all the political stuff catching my interest lately is gay marriage related. Time for a change of pace. Really liked Jon Cohn’s post last week on how the easiest argument that the individual mandate is constitutional is that it is a tax. I’ve always found this one quite compelling. Obviously, the Democrats did not want to call it a tax for political reasons, but if it walks like a tax, and quacks like a tax, then for Constitutional purposes, it should be considered a tax. And if it’s a tax, Constitutional question case closed. Cohn:
In a new piece for the Atlantic, Jack Balkin argues that the answer to both questions is plainly “yes”—and wonders why that argument hasn’t loomed larger in the court cases challenging the Affordable Care Act.
It’s a very good question. As Balkin notes, the argument for the mandate as a tax is simple and straightforward: It’s part of the tax code, it raises revenue, it promotes the general welfare, and it’s not a so-called “direct tax.” The usual counter-argument is that architects of the law didn’t use the word “tax” during the debate. According to Balkin, that’s irrelevant…
Balkin isn’t the only lawyer who has made this make this argument. The Obama Administration’s attorneys, among others, have invoked this logic from the very beginning. And virtually everybody in the case, even the plaintiffs, seem to agree that a simple change in wording would make the mandate clearly permissible.
So why, then, should the semantics mater so much? The critics say it’s a matter of political accountability: Had Obama and his allies called the mandate a tax, they say, the public would have opposed the law more strongly…
That seems awfully speculative to me: People were obviously aware of the mandate, from early on. Sadly, it’s one of the few elements of the law the public grasped, albeit with significant misunderstanding of the details. But suppose the critics were right and that the Democrats really did snooker the public. Is it really the Supreme Court’s job to play fact-checker in political debates? If so, will they also entertain lawsuits about Republican use of the bogus “death panel” argument?
It’s true, to some extent, that we depend upon the voters to police the boundaries of federal power—to guard against encroachments upon liberty that the constitution’s framers might not have anticipated. But the right of government to levy taxes in order to pay for universal health insurance isn’t in dispute. [emphasis mine] We already have such a scheme in place, for Medicare. Both the courts and the public signaled long ago that such schemes are constitutional.
Let’s be clear here– there’s ample Constitutional basis to support the ACA. For the SC to overturn this duly-enacted legislation would thus be as dramatic a display of judicial activism as one ever sees. Either you believe that the Court should be conservative and judicious in over-turning the actions of duly-elected representatives or you believe they should substitute their own judgments in making policy (and, of course, sometimes even when being small “c” conservative the right call is to overturn laws).