Monday, March 26, 2012

Just asking

If the Supreme Court strikes down the healthcare law on the ground that the mandate was a "penalty" not a "tax," doesn't that mean Congress could enact exactly the same law the day after, throw in the word "tax" a couple of times without changing any substance, and it would be constitutional?

I am guessing that, if they do strike down the healthcare law, they will want to come as close as possible to the Bush v. Gore formula of trying to issue a one-off decision with zero precedential value. I doubt they'd have the nerve to state this expressly again. But given that many of the Republicans on the Court favor broad federal powers when they like what's happening (or who did it), why would they want to create any less flexibility for themselves the next time around?

Basing the reversal purely on word choice would have this desirable quality, from their perspective, by offering a roadmap that could be used to prevent the decision from serving as a significant precedent.


CG said...

There is a real difference between allowing a mandate as a tax and allowing a mandate as an exercise of the interstate commerce power. After all, the commerce clause carries with it the potential for direct criminal enforcement. The taxing power, however, can only regulate actitvity, or inactivity indirectly, with jail only available upon failure to pay.

The fact that Congress could accomplish something with its taxing power (which is also disputed in this case) does not mean that that it could do the same thing with its commerce power. Otherwise, every expansion of the taxing power would lead to an expansion of the commerce power, and vice versa.

Daniel Shaviro said...

I see your point in general, but in this case, it does seem clear that they could have had a "tax" on not having insurance. Or, still similarly, a tax that is used to give you insurance whether you like it or not (a la Medicare). So, even granting your point that the two powers need not be coextensive (and that ratcheting up between them might not make sense), in this case it seems to have been rather like a "tax" in all but name.

CG said...

The crucial issue, which will be debated tomorrow, is that Congress wrote the statute in the terms it uses to express commerce clause legislation. That is, you shall maintain minimum coverage. It is true that the penalty could have been rephrased as a tax (although there is still the Direct Tax argument there) but the most natural reading of what Congress did is to enact a mandate with a penalty.

And that is most likely what Congress thought it was doing. In fact, I think it would be unfair to Congress to uphold the penalty as a tax because that could result in unfair political accountability for those who voted for PPACA because they thought it was a penalty and not a tax.