So It's a Tax, Now What?: Some of the Problems Remaining after Nfib V. Sebelius
Sandefur, Timothy, Texas Review of Law & Politics
[The federal government's taxing] power, exercised without limitation, will introduce itself into every corner of the city, and country-It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!^sup 1^
Few predicted the Supreme Court's ruling in National Federation of Independent Business v. Sebelius (NFIB)2 to conclude that the "individual mandate" provision of the Patient Protection and Affordable Care Act (PPACA)3 is not a regulation of interstate commerce, but is instead a tax on persons who do not choose to buy "minimum acceptable" health insurance.4 This legal theory was addressed in only a few pages of the government's extensive briefing in the case and occupied practically no time during the unusual, three-day oral arguments.5 To this day, the Obama Administration, which claims to have won the case, has refused to accept this "tax power" theory; in a recent interview in Rolling Stone magazine, President Obama registered again his view that the individual mandate is an exercise of Congress' power under the Commerce Clause and not a tax.6 Those of us who oppose the law on legal and policy grounds must, however, live with the decision, and, what is harder, try to make sense of it. This article will address some of the questions that remain in the wake of the NFIB decision.7 In Part II, I review the rationale of NFIB, and one especially significant problem that remains with regard to Commerce and Tax Clause jurisprudence. In Part III, I take the decision's tax power rationale at its word: How does converting the individual mandate into a tax change the effect and the constitutionality of the PPACA? In Parts IV through VI, I address three constitutional problems with this tax-the Apportionment, Uniformity, and Origination Clauses respectively. I conclude that, even if recharacterized as a tax, the requirement to buy a health insurance policy is unconstitutional.
II. How the Affordable Care Act Changed Its Spots
When Congress passed the PPACA, it did so with the full intention of relying exclusively on its expansive power "[t]o regulate Commerce . . . among the several States . . . ."8 This is clear from the statute itself, which repeatedly uses the language of Commerce Clause jurisprudence to lay a constitutional foundation. For example, the PPACA asserts that the individual mandate
is commercial and economic in nature, and substantially affects interstate commerce, as a result of the [following] effects . . . on the national economy and interstate commerce[:] . . . Private health insurance . . . pays for medical supplies, drugs, and equipment that are shipped in interstate commerce. . . . | F11 call li insurance is sold in interstate commerce and claims payments flow through interstate commerce. …