Old and Busted: Commerce Clause Abuse. The New Hotness: The Tax Catch-All.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” ~ Lewis Carroll

There's been a lot of analysis in the wake of yesterday's disastrous (IMO) decision by John Roberts to join the court's liberals and find a constitutional justification for Obamacare, and I thought I'd address a couple of related points that are swirling around (before Ace gets to them in this rare fit of in-before-the-crack-of-noon posting).

First, there's some chatter about the "mandate as a tax" position violating the constitutional requirement that tax bills originate in the House. I hate to burst people's bubbles (not really), but this is just silly.

Don't forget that the law contains some actual tax increases on payrolls, medical devices, etc. If PPACA was an unconstitutional tax on top of all the other issues it has, don't you think we'd have included that fact in our arguments against it before now?

There's a decent post at Hot Air on the legislative history that explains why even though the Senate's version of health care reform was passed it meets constitutional muster.

The bill that passed the Senate wasn’t technically a Senate bill. Reid took a bill that had already passed the House, stripped out the provisions to turn it into a “shell bill,” and then inserted the text of ObamaCare to get around this requirement. The bill that passed the Senate was H.R.3590, which initially had to do with tax breaks for military homeowners. And yes, they’ve used the “shell bill” strategy before. In fact, the conservative opinion today specifically mentioned Article I, section 7 at one point while raising no objection to Reid’s sleight of hand.

The process was admittedly ugly, but the Supreme Court apparently couldn't care less about this type of chicanery.

Now to the more important issue. This idea that Roberts was playing n-dimensional chess and this is some kind of great victory that puts an end to Commerce Clause abuse is ridiculous. Oh, sure, there will never again be a health care mandate offered under the Commerce Clause, but that's about the end of it.

And, worse, any gain that may have come here opened the door to an awful new legislative fallback position where all sorts of laws of dubious constitutionality can be passed and then magically transformed into a tax when they reach the Supreme Court because they could have been passed as a tax.

The Court's ruling ignores the entire reason that taxes were supposed to originate in the House. The idea, in a nation whose founding narrative centers around a tax revolt, was that this was the branch of government most responsive to the people, and the red wave of November 2010 shows that this notion is far from antiquated.

Roberts, in joining the Court's liberal wing, effectively moved the taxation power to the least accountable branch of government. If congress and the president had wanted to pass Obamacare as a tax, I don't disagree that they had the constitutional power to tinker with the tax code in an attempt to arrive at a similar result (the convoluted tax code we have now is largely the product of such social engineering efforts). The question is whether they would have had the political will.

The RNC's new ad that Ace linked this morning (included below the fold here, in case you missed it) gives a pretty good indication of the answer.

Is it even reasonable to believe that the law the Court ruled on would have been identical if the penalty associated with the mandate had been referred to as a tax during deliberations? As someone (RD, I think) said yesterday, if the Supreme Court truly believes the penalty would be constitutional if it was a tax, then it should have sent the law back to Congress and told them, "nice try, but pass it as a tax". Instead, the Court took it upon itself to rewrite the law.

I'm so old I remember when judicial restraint included the notion of considering legislative intent. Now, Congressional Record be damned, the mandate is a tax because John Roberts says it is (sometimes). It's hard to see how this "victory" is anything but Pyrrhic.

posted by Andy at 03:50 PM

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