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The Sleeper Argument before the Court

Since we're all waiting for the Supreme Court to give a verdict on Obamacare, and since I'm going back through possible ways the justices could rule, here's another argument that hasn't gotten nearly enough attention. Forget whether the Commerce or Necessary and Proper clauses justify the mandate. Congress has the power to levy taxes. And the mandate is a tax.

Remember, the mandate is not truly a mandate to obtain health insurance, although critics and even supporters frequently describe it that way. It is, rather, a requirement to pay the government money if affordable health insurance is available and you choose not to get it.

And even the word "requirement" is a little misleading. Failure to comply with the mandate brings no criminal consequences, as the Solicitor General confirmed explicitly during the oral arguments. In fact, defying the mandate brings virtually no consequences at all. If you don’t get insurance and refuse to pay the fee, the government's only recourse is to withhold future tax income rebates, if you happen to be eligible for any.

As I've said previously, policy wonks like me think that's a bug, not a feature. But it ought to make the constitutional argument even more clear-cut. For all intents and purposes, the mandate is nothing more than a financial incentive to get insurance. If the law included a health care tax with refundable credits for people who got insurance on their own, the real-world effect would be exactly the same. Such a provision would be clearly constitutional.

A chief proponent of this idea has been Yale Law School’s Jack Balkin, about whom you may have read in Jeff Rosen’s terrific essay on liberal legal scholars who ground their arguments in the founders' original intent. Balkin helped craft an amicus brief making the argument for the tax and then adapted those arguments for the Atlantic:

Congress's enumerated powers in Article I, section 8 begin with the General Welfare Clause, which gives the federal government the power "[t]o lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States."
Note that Congress doesn't have to call something a tax for it to fall within this power. The Constitution itself uses no less than five different words for taxes: taxes, duties, imposts, excises, and -- in Article I, section 7 -- "revenue."
Revenue, it turns out, is the key idea. To fall within the tax power, a law must raise revenue. And the mandate certainly does. The Congressional Budget Office estimated that the mandate will have raised $17 billion by 2019, and that starting in 2017 it will raise approximately $4 billion a year. …
It also doesn't matter that the real purpose of the tax is to regulate behavior. Lots of taxes are designed to do just that -- think about taxes on polluters as an example -- and federal taxes on drugs are designed to keep people from buying or selling them. In 1950, the Court upheld a tax on marijuana, explaining that "a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary." "Nor does a tax statute necessarily fall," the Court added, "because it touches on activities which Congress might not otherwise regulate" under its other enumerated powers. So even if the mandate is beyond the commerce power, it can still be a constitutional exercise of the power to tax and spend for the general welfare.

The usual counter-argument is that neither Obama nor proponents of the mandate decided to call the mandate a tax. Balkin makes (in my view) a series of compelling counter-arguments. He cites, among other things, precedents that suggest rhetoric and labels matter not a whit. Balkin's argument, echoed by others, boils down to this: If it functions like a tax, then the Courts should consider it a tax, no matter what the president or Congress said during the legislative debate. 

Critics of the law say that endorsing the mandate as a tax would allow the law’s sponsors to escape political accountability. I still don’t understand when the Supreme Court’s job description grew to include fact-checking political debates. But if accountability is the issue, then a ruling on the taxing power would actually be the most elegant solution of all.

The Court would be saying, in effect, that President Obama raised taxes, thereby imposing the accountability that the law’s sponsors supposedly tried to avoid. At the same time, the conservative justices would be side-stepping the whole Commerce Clause debate, an issue I suspect at least some of them don’t really want to tackle. (Or, if the justices are determined to set limits on the commerce clause, they could still do so while upholding the law under the taxing power.) They’d also be deferring to the legislature on policy-making, as the justices are, in theory, supposed to do.

Would five justices vote for this? Almost certainly not. Even some of the liberals seemed skeptical of the taxing argument. But it wouldn’t take five justices to make this happen. It would take just one of the conservatives to break ranks and endorse this theory. That vote, plus the four likely votes (from liberals) to uphold the mandate on Commerce or Necessary-and-Proper grounds, would have the same effect—as policy and, more or less, as politics.

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