I honestly don’t know. I haven’t done any work, or research, into the issue. The tiny bit I did seems to indicate that the power to tax used primarily as a regulatory scheme was deemed Unconstitutional for about 15 years in the 1920’s and 30’s. But since about 1937, it has been allowed by the Supreme Court.
Just so I understand you, you think that the law is constitutional, correct?
Thanks, **Hamlet **and **Bricker **for clarifying this.
It’s interesting to see that quote from Sonzinsky. As I mentioned earlier, I could see a game of chicken developing over this between the White House and the Court, who don’t seem to be on very good terms at all.
I don’t know how many decisions there were between West Coast Hotel and Sonzinsky, but it isn’t many. I could see Kennedy making a pragmatic decision to allow a broad view of the Commerce Clause to prevent direct combat with the elected branches.
I am not sure Sonzinsky v. U.S., 300 U.S. 506 (1937) really answers this question for us. At issue in this case was a tax imposed for guns transferred and the imposition of a tax on dealers of firearms. The language in the case was espoused and articulated within the context of these facts. These facts are different from imposing a tax on an individual who has not purchased a product.
I am not suggesting the tax is unconstitutional on this basis. Rather I am suggesting I do not know the answer and I do not think we are going to find any answers in case law because such a question, to my knowledge, has never been presented before the Court and therefore, never decided by the Court.
Now, I do know Congress imposing a tax on goods and services in an effort to deter people from purchasing the good or using the service is constitutional. In other words, Congress can impose a tax on goods and services to affect peoples’ behavior, and perhaps it is not a leap at all for Congress to do the converse, affect peoples’ behavior by imposing a tax for not purchasing some good or service.
Well, this would not be an inquiry into the **hidden motives **of Congress since the statute explicitly tells us why they are imposing the tax. The entire taxation scheme is explicitly spelled out in the statute. Second, motive or no motive, there is still a question of whether Congress can tax an individual on the basis they failed to buy a product, in an effort to induce them to purchase the product.
While this specific question has never been asked before, any court (or person espousing an opinion), is going to look to prior caselaw for the determination. They’re not just going to make it up. So when you look at the Commerce Clause, and you look at regulatory tax law, as those have been interpreted by the Supreme Court, you can make a pretty good guess that it will be found constitutional. Given cases like Raich, Morrison, and Kahringer, I would actually be very surprised if this legislation was struck down as unconstitutional.
Well but the Court does and has faced a case of first impression. A Court deciding a case of first impression is asserting no prior cases have ever decided the factual issue before them, which is to say no prior cases’ holding compels a particular result or outcome for them to follow. Sure, they will look to prior cases for principles and rules but at the same time they could assert they are not required to hold the mandate is constitutional, indeed they could hold the mandate is unconstitutional, consistent with those prior cases.
I would not be surprised if they held the mandate, along with the tax provision, constitutional.
However, I would not be surprised if they held the mandate is unconstitutional. I can see J. Scalia, Thomas, Alito, Roberts, and Kennedy asserting the power to regulate commerce was not originally understood to possess any power or authority for Congress to compel or order people to purchase a product/goods and the substantially affects commerce test cannot justify such an expansion. They will undoubtedly, if taking this position, cite to a lot of historical evidence to support their position. (Kennedy my not rely upon the originalism approach, or Roberts, but agree with the majority conclusion the mandate is unconstitutional but for different reasons.)
So I can see it going either way and I simply do not think there are any cases we can rely upon to say, “Look here, this case answers the question for us.”
It’s to be collected by the IRS along with income tax payments, so whether it’s a “fine” or a penal tax would appear to be rather semantic.
Yup.
Poor public policy, but completely constitutional.
Just so you know, Hamlet is a former prosecutor, so he probably understands what an issue of first impression is.
I only say “probably” because of his frequent disagreements with me, which of course call into question his fundamental skills of analysis. 
When you can shove it into my cold, dead hands!
And, as an aside, your opinion of those state AG’s who would bypass the will of the majority and attack the decision through the judicial process, hoping a court will overturn it?
LOL…I meant no disrespect to Hamlet. If I did, my apologies Hamlet. Just to clear the air, Bricker I find your remarks and analysis to be very good, along with Hamlet’s.
Really, in the end, aren’t we just searching for an answer anyway? I’d just love for a case to exist which forecloses this issue! However, this type of power worries me. The notion Congress can mandate I purchase anything is a power they, as you noted in the other thread, originally never possessed, and using originalism should not ever possess, but now can the Court or is the Court willing to clip this power after decades of expansion?
It can, but it’s going to be highly reluctant. The odds are very low.
No disrespect taken at all.
Eventually, there will be a case to decide it, but it won’t ever be foreclosed. Look at how people still argue over Gideon, Brown, hell, even McCullough and Marbury. No matter how the courts rule on this issue, there will always be the debate of whether it was right or wrong.
To me, this phrase is just spin. You are required to have car insurance, businesses are heavily encouraged by the tax code (like this law) to buy health insurance for their workers, lawyers and doctors have to have malpractice insurance. And Congress has long used the tax code to regulate actions of people. While I agree, there is the Libertarian/small government part of me that is uncomfortable with the mandate, but if I can live with seat belt laws and wheat producers having to limit how much they produce, I can live with people who don’t buy health insurance having to pay a higher tax.
It depends.
I think they’re wrong on the law.
So the question is – what’s their actual motivation? If they sincerely believe they’re right on the law, then they’re doing their job. They’re mistaken, but they’re doing their job.
If, as I think is more likely, they simply seek a particular result, and are unhappy with what the legislature has coughed up and so turn to the courts to get the result they want, not out of principled analysis but simply a desire for a particular policy end… then they suck. They are hoping to prod a court into an activist ruling.
Well, I’m a former defense attorney, so perhaps there is some natural antagonism, some avatistic snake v. mongoose, left over. Not to worry, and thanks for the kind words.
I don’t see this as a foray into a dramatically new area of power, though. The place to curb this ill-advised excess is in the legislature. If our notions of self-governance are to mean anything, surely they stand for the proposition that we should be asking our elected officials, and not our unelected judiciary, to chart this course.
I’m going to predict that the Supreme Court will strike down the portion of the bill that mandates individuals buying insurance. The commerce clause does not reach to individuals not in interstate commerce, and the taxing power (a very interesting argument) does not reach into mandating anything other than taxing. Personally I think the bill is better without the mandate.
If they do, that will be disappointing.
Mind you, I like that result. But since the vast bulk of Commerce Clause jurisprudence supports the mandate, if they act as you suggest, it will be a very results-based decision. And that will be quite disappointing.