Could the Individual Mandate Be Unconstitutional Even As a Tax? Part 2

Part 2: The Question of Constitutionality

After reviewing the majority opinion on the Affordable Health Care Act, now we shift to renewing questions of constitutionality. Despite the Supreme Court ruling that the Individual Mandate is constitutional as a tax, it is possible that calling it a tax makes it unconstitutional.

I have a sneaking suspicion that the law was written exactly as intended. That the Individual Mandate, never referred to as a tax but a penalty, was simply a way to confuse the American People. Knowing that there would be much opposition to the legislation, it seems they were prepared for the Constitutional Question by having two lines of defense.

Furthermore, knowing that a Commerce Clause defense would not work, the penalty as a tax issue was on standby. The question wasn’t taken beyond whether the penalty was lawful as a tax. What I mean by this is that after deciding that the IM did not violate the Direct Tax Clause, the question was closed.

While Congress has the power to levy and collect taxes, those taxes must not infringe on the Constitution. I, hereby, reopen the question:

If the Individual Mandate is a Tax, is the tax constitutional?

I’d like to first start with a statement made by Justice Roberts:

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. 

Justice Roberts wrote this in his opinion (see Part 1 of this series) as an example of how the tax is not made for unlawful acts. Reading this on face value, he states that the AHCA does not attached negative legal consequences, and neither does any other law.

In effect, this was just political double-speak on Robert’s part. What happens when you don’t pay the IRS the money they state you owe? – You are charged with tax evasion (a negative legal consequence) and sentenced fine and/or jail time (a negative legal consequence).

What is worse, with this Mandate, is that should you not have health care and you have dependents, you would pay this “penalty/tax” for yourself and each dependent that does not have health care. So, it is a variable tax from person to person and circumstantially motivated.

So, given this, I make the argument that Justice Roberts was wrong in his statement and that there is an intended legal consequence built into the Individual Mandate, an indirect attachment of legal enforcement action towards citizens that don’t have health care and don’t pay the “penalty” through their taxes.

Who is exempt from the mandate? –

  1. Members of a recognized religious sect or division thereof.
  2. Adherents of established tenets or teachings of such sect or division.
  3. Members of Health Care Sharing Ministries
  4. Illegal Aliens and Non-Citizens who are legal residents in the U.S.
  5. Inmates and Incarcerated Individuals
  6. Individuals who cannot afford coverage – coverage must exceed 8% of their income.
  7. Required Contributors – (At this point the way the law is worded is so confusing it is hard to make sense of it) – The required contribution is the amount a worker would have to pay for his or her employer’s plan. To gain exemption, that ‘required contribution’ must exceed 8% of your income.
  8. Tax Payers with income below the filing threshold
  9. Members of Indian Tribes.

So, I just want to stop and check here: Who isn’t exempt? The answer to that is pretty much everyone who has an above minimum wage income and is a citizen. If you are low income, or don’t have a job, you are exempt. However, let’s look at this scenario: Let’s say that you work at a job that does not offer insurance. If you make above minimum wage, you’re not exempt and you will be forced to choose a government sponsored health care plan.

After going through the exemptions list, and realizing that middle to upper income families tend to have insurance and can afford insurance, there doesn’t seem to be a problem, does there?

Other provisions of the Health Care Act may have a potentially negative effect on businesses that offer insurance. To the point, it is entirely possible that some businesses will stop offering insurance in favor of paying their own “penalty” per employee, which would end up costing them less than offering insurance. That being said, it is possible that some of the hard working non-exempt people find themselves in a situation of being penalized.

The worst part about the Supreme Court’s decision was Justice Robert’s opinion on usage of taxation:

Taxes that seek to influence conduct are nothing new.  Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. 

“The taxing power is often, very often, applied for other purposes, than revenue”. Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking…..

Indeed, “every tax is in some measure regulatory.  To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.”

Firstly, this was the worst thing a Supreme Court Justice could do. He gave a political opinion, an unwarranted statement, about the extent of taxation. It was beyond his scope as an SCJ to do so. His job is only to decide whether provisions in the Act were constitutional. Here, he gives the courts blessing for any type of regulatory taxation.

Secondly, as examples he cites commercial products that are taxed, such as tobacco being highly taxed to encourage and compel people to quit smoking. If purchasing Health Care is to be considered commerce, then the Court has already deemed, through the Commerce Clause, that the Individual Mandate is unconstitutional. It is highly suspect, then, to claim that taxing the inaction of American Citizens to purchase healthcare is constitutional. You can’t have it both ways.

Remember when Bill Clinton said: “It depends on what the meaning of IS is”? The circumstances are humorous, but despite that he was exactly right. Clinton must have been prescient, because years later, we are now in a situation where we have to define what IS. Is the Health Care considered commerce? If so, then it is unconstitutional to compel anyone into that commerce. Period.

The question should have stopped there, but because of a precedent in 1937, it is lawful for the Constitution to be stretched and twisted and taped back together in order for the words to shake out the way certain political agendas want them to be read. Even so, Justice Roberts confirms that “penalty”, even in the Affordable Health Care Act, is synonymous with “punishment”. In effect, the tax is a punishment. However, Justice Roberts states that it is acceptable because there is no legal action taken, only a tax.

Despite the contradictions, the double speak, and the blatant constitutional boundary stretching, there is still one more point to make regarding the Individual Mandate. The 1st Amendment was a major part of the Constitutional Convention in 1787, where our Constitution was founded. One part of that amendment is Religious Freedom.

Looking deeper at this provision, it is not just about having the freedom and right to practice whatever religion you want, it was also about the government not making laws that affect religious beliefs and institutions. By stipulation, that very same law prevents legislation that targets non-religious persons.

You ask what my point is. It is this, across the board, the Individual Mandate gives exemption to anyone that follows a “recognized” belief system, belongs to a religious institution, or adheres to ‘recognized’ religious principles. All due respect to religions and their followers, but this:

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

I want to focus on one type of tax. Excise taxes are internal taxes (inland taxes as opposed to import taxes) imposed on the production, sale, or consumption of a commodity OR a tax imposed on the use of a service within a country. Examples: excises on tobacco and alcohol. This type of excise is known as a Sin Tax. Excise Taxes are also a licensing charge or a fee levied for certain privileges.

As Justice Roberts already used the example of regulatory taxation with tobacco to compel citizens to quit smoking, he unavoidably associated the Individual Mandate with an excise tax. In doing so, he marked the Individual Mandate as unconstitutional as an excise tax. As well, it falls under excise taxation as a fee (read penalty) levied for certain privileges, in this context, it would be the “privilege” to not have health insurance.

As you can see in the above passage of the Constitution, it clearly states that all Excises shall be uniform throughout the United States. In other words, the tax must be levied on every state equally so as to not give advantage to one state, or group of states, over another. How does this affect the Individual Mandate being unconstitutional?

Alexander Hamilton via The Federalist Papers:

BEFORE we proceed to examine any other objections to an indefinite power of taxation in the Union, I shall make one general remark; which is, that if the jurisdiction of the national government, in the article of revenue, should be restricted to particular objects, it would naturally occasion an undue proportion of the public burdens to fall upon those objects. Two evils would spring from this source: the oppression of particular branches of industry; and an unequal distribution of the taxes, as well among the several States as among the citizens of the same State.

Consider that, by and large, taxation has been affected to either help or hinder middle class citizens. It would be reasonable to say, in light of Hamilton’s concern, that taxation has mainly (but not completely) been restricted to one “particular object”, that being the middle class. Following that line of thinking, the two evils he spoke of springing has occurred. Especially the “unequal distribution of taxes among several states as among the citizens of those states.”

Considering that there are religious exemptions across the board, Southern Baptist States and States such as Utah with a high Mormon population gain advantage over other states through their religious exemptions. Therefore, the tax cannot be considered uniform.

As well, constitutionally, Congress cannot pass any laws showing favor towards religious groups as part of the intended “wall of separation” created in the 1st Amendment.

From the documents of the Constitutional Convention in 1787:

MR. MADISON said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.

MR. HUNTINGTON said that ….. he understood the amendment to mean what had been expressed by the gentleman from Virginia(James Madison); but others might find it convenient to put another construction upon it. ….. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.

MR. LIVERMORE thought it would be better if it was altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.

The question was then taken on LIVERMORE’S motion, and passed in the affirmative.

In the reference section below, you can find the link to view the debate on the Religious Freedom portion of the 1st Amendment. However, as you can see here, the discussion was more than just about being free in your religious beliefs, it was about how that would and should affect the government of the country. The wording that Mr. Livermore used was what was passed (voted and agreed upon). This was the intention of our forefathers. But, it is clearly evident that the reverse of religious freedom (as we know it) was true, that there should be no patronization of those that profess no religion.

In other words, you are exempt if you join a church or religious sect. If you don’t, you’re not exempt. An argument could be made that the excise tax compels a non-religious person to worship in a manner that is contrary to their conscience. Or it could be made that the Individual Mandate enforces a legal observation of religion by law.

In which ever case you want to view it, an illegal non-uniform excise tax, a mandate recognizing religion and giving exemption for adhering to said religion, or an unlawful penalty tax that could result in criminal charges, the Individual Mandate is wholly unconstitutional in word and form.


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

National Archives – The Constitution of the United States of America. (n.d.). Retrieved July 23, 2012, from National Archives:

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

The Founders Constitution. (n.d.). Retrieved July 23, 2012, from University of Chicago Press:

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