FRONT PAGE CONTRIBUTOR
WH: Individual mandate now a tax.
Democrats, administration apologists hardest hit.
When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”
Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.
The individual mandate is a tax. It has always been a tax, denials of the administration to the contrary. And, as the article makes clear, the administration is now going to enthusiastically call it a tax in order to keep it from being thrown out as blatantly unconstitutional. You see, the Commerce Clause argument falls down when you put too much pressure on it:
To assess the constitutionality of a claim of power under the Commerce Clause, the primary question becomes, “what class of activity is Congress seeking to regulate?” Only when this question is answered can the Court assess whether that class of activity substantially affects interstate commerce. Significantly, the mandate imposed by the pending bills does not regulate or prohibit the economic activity of providing or administering health insurance. Nor does it regulate or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or other entities engaged in the business of providing a medical good or service. Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.
Proponents of the individual mandate are contending that, under its power to “regulate commerce…among the several states,” Congress may regulate the doing of nothing at all! In other words, the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. To uphold this power under its existing doctrine, the Court must conclude that an individual’s failure to enter into a contract for health insurance is an activity that is “economic” in nature– that is, it is part of a “class of activity” that “substantially affects interstate commerce.”
Never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity.
But you can’t challenge a tax that way – so it’s a tax, now. Which means, by the way, that when the President promised not to raise taxes:
…he lied. And he thinks that the American people will swallow that lie, because he and his party’s leadership cadre all think that the American people are stupid.
Crossposted to Moe Lane.