Could the Individual Mandate Be Unconstitutional Even As a Tax? Part 1

Part 1: Precursor – Understanding the Supreme Court Decision

Much ado about everything has been made about the Affordable Health Care Act (AHCA, ObamaCare), but are we missing the most important thing? Did the Supreme Court, in February, find the AHCA constitutional as a tax, despite the tax itself being unconstitutional?

To decide this, we first need to understand the Supreme Court’s controversial decision.

On June 28th, Supreme Court Justice Roberts wrote the opinion on the challenge against two measures of the Affordable Health Care Act. The first challenge was the Individual Mandate (IM) and the second was the Medicaid Expansion Act. The Supreme Court decided in favor of the IM as a tax, despite it being specifically referred to as a penalty. The decision has fallen to controversy and stirring of change being needed in the Supreme Court has begun.

Justice Roberts began his Majority Opinion with a long pre-text lesson on the intentions of the founders of the Constitution with respect to Congressional Powers. Near the end, Justice Roberts makes the grave mistake of writing about ‘expansive powers’ of the Federal Government:

The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” We have long read this provision to give Congress great latitude in exercising its powers…

Despite the lengthy history lesson, of enumerated powers in the Constitution, Justice Roberts then begins to make a case for broadening the scope of enumerated powers through re-interpreting the words of the Constitution to fit the agenda. The greatest abuse of our government, by far, is the wordplay used to effectively rewrite the Constitution in favor of political agendas.

In reaching for a defense of the Affordable Health Care Act:

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance.  But, for the reasons explained, the Commerce Clause does not give Congress that power.

It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.”  

In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax.

What this passage from the opinion says, is: Despite the Individual Mandate being plainly unconstitutional, the Government defends it with word-play loopholes. The first attempt, using the Commerce Clause, is a failure. The second attempt is to say, “Look, the Internal Revenue Service will be collecting these penalties via tax returns, so since we cannot use the Commerce Clause, we choose to call it a tax now.”

This switches the underlying intention of the Individual Mandate to avoid the Constitutional Question. Unfortunately, though, it also shows us the intention of our legislative body.

The use of the Commerce Clause (regulating Interstate Commerce) was their way of insisting the purchase of the Federal Health Care plans. However, the Commerce Clause cannot compel a citizen into commerce, it can only regulate what exists and who is already involved. So, insisting on an obviously unconstitutional health care law, our legislators then say, the penalty is a tax, then. We have powers of taxation. That is our loophole to make it constitutional.

The Affordable Care Act describes the “shared responsibility payment” as a “penalty,” not a “tax.”  That label is fatal to the application of the Anti-Injunction Act.  It does not, however, control whether an exaction is within Congress’s power to tax.  In answering that constitutional question, this Court follows a functional approach, “disregarding the designation of the exaction, and viewing its substance and application.” 

Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax.  The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. 

Just as an aside, do you realize why lawyers and politicians use so many words, that aren’t necessary, in their documents? It’s because they know that most people aren’t going to read it thoroughly and, just as with fine print, they are able to hide things in plain sight.

After having already stated that a penalty is unconstitutional under the Commerce Clause, the court now shifts to deciding whether that penalty can be collected as a tax. In fact, nowhere in the act is it called a tax. It is repeatedly named and described as a penalty.

This is where the decision of the Court went wrong. Rather than taking the wording of the Act prima facie, the Government and the Court sought to play with the words. The Individual Mandate, not ever regarding itself as a tax and being collected through regular taxation processes, marks itself unconstitutional.

Unfortunately for the American Citizen, the Supreme Court admits (through precedent) that it had to take every measure to keep the Mandate from being considered unconstitutional. Let me paraphrase the opinion this way: Justice Roberts told us plainly that despite the Mandate being unconstitutional as it is written, the Supreme Court felt it was their job to make reasonable efforts to interpret the law in a way that made it constitutional. This, in itself, describes one of the problems with the Supreme Court system. That, however, is for another blog.

Justice Roberts concludes with this:

None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful.  Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.  And Congress’s choice of language— stating that individuals “shall” obtain insurance or pay a “penalty”— does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.

Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents.  It therefore need not be apportioned so that each State pays in proportion to its population.

I’m sure it won’t come as a surprise to you that I, actually, have issues with these final statements. First, Justice Roberts has the audacity to confirm that the “penalty” is, in fact, intended to induce the purchase of health insurance. Then, a bit condescendingly, he says, (satirically paraphrasing) “But, hey.. you don’t have to read the mandate the way it’s written, you gotta cross your eyes and look sideways at it. You can’t be arrested for not purchasing insurance, you only have to pay the IRS.”

He goes further to state that the language in the bill shouldn’t be viewed in a negative light either. Despite it using the definitive phrase, “shall obtain….or pay a penalty”, Justice Roberts insists that it should be read as simply imposing a tax on those who go without insurance.

I think it is the height of arrogance that all 3 branches of our Government believe in the collective idiocy of the American People. They offer health insurance, they tell you that you don’t have to get the health insurance from the government, but you have to get it from somewhere (i.e. compelling the public to do something). Then it states, “Ok, if you don’t have health insurance, you will have to pay an additional amount of taxes each year. The amount of which compounds monthly, per insurance eligible person in your household.”

It is important that you, the reader, have a good understanding of what transpired in the decision and what the written opinion is actually saying. In Part 2, I will attempt to begin showing how the Individual Mandate, as a tax, is actually unconstitutional as well.


Legal Information Institute. (2012, July 3). Retrieved July 23, 2012, from Cornell University Law School:

Roberts, C. (2012, June 28). Majority Opinion – Affordable Health Care Act. Retrieved July 22, 2012, from Supreme Court Website:

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