I find it kind of funny that, in the end, what saved President Obama’s health care reform law was to go ahead and call a tax (the crucial cost-controlling provision previously known as a “mandate”), a “tax.” From the Washington Post’s Robert Barnes (emphasis added):
At the core of the legislation is the mandate that Americans obtain health insurance by 2014.
The high court rejected the argument, advanced by the Obama administration, that the individual mandate is constitutional under the Commerce Clause of the Constitution. Before Thursday, the court for decades had said it gave Congress latitude to enact economic legislation.
But Roberts found another way to rescue it. Joined by the court’s four liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — he agreed with the government’s alternative argument, that the penalty for refusing to buy health coverage amounts to a tax and thus is permitted.
Roberts summed up the split-the-difference decision: “The federal government does not have the power to order people to buy health insurance,” he wrote. “The federal government does have the power to impose a tax on those without health insurance.”
Later in the Post story, Justice Kennedy explains that the basic problem was that Congress (and implicitly the Obama Administration as well) wouldn’t call a tax a “tax” (bold added):
Kennedy said Roberts and the justices who joined him rewrote the statute in order to save it.
“The act requires the purchase of health insurance and punishes violation of that mandate with a penalty,” Kennedy said. “But what Congress called a ‘penalty,’ the court calls a tax. What Congress called a ‘requirement,’ the court calls an option. .?.?. In short, the court imposes a tax when Congress deliberately rejected a tax.”
It’s seems rather ironic to me that the authors of the health care legislation avoided the term “tax” to make the policy seem more acceptable to the American public–and in the process called its constitutionality into question. Politicians work so hard to avoid that dirty word–as I’ve noted previously in different contexts. Yet, taxing is one of the most appropriate things the federal government can do; it is essential in order to fund the public goods and services (such as “affordable [health] care”) that it provides.
Who knows what other things we might be able to accomplish by embracing the federal government’s taxing authority?!
(PS: Here’s the Concord Coalition’s reaction to the decision.)