When is a “Not a Tax” Actually a Tax?
By lex, on June 18th, 2010
Back in March, I posited that the administration’s strange use of language in drafting the Obamacare bill was setting the administration up for a Supreme Court challenge, since the individual mandate requiring private citizens to purchase private health care under the Commerce Clause and outside Congress’ power to tax amounted to an unconstitutional bill of attainder.**
It turns out that I needn’t have worried – “not a tax” has been magically transmuted into a tax by the Department of Justice in a Florida court battle:
The final version that Obama signed did not describe the mandate as a tax, and used the Commerce Clause — not federal taxing power — as the Constitutional justification for the mandate.
“”This is an about face from what is laid out in the law,” said Karen Harned of the National Federation of Independent Business, which joined the Florida lawsuit against ObamaCare. “In the text of the healthcare law, the findings for passing an individual mandate specifically rely on the effects of individuals on the national economy and interstate commerce. Nowhere in the findings is the mandate referred to as a tax. The Justice Department is now calling it a tax to try and convince the court not to rule on whether or not Congress exceeded their authority under the Commerce Clause by legislating that all citizens must purchase private health insurance or face a penalty.”
So, Obamacare allowed for “penalties” collected by the IRS under the Commerce Clause back when it was important to deceive the people into believing that the president was not raising their taxes, but these penalties became taxes once it became clear that the bill was being contested on constitutional grounds.
And here’s the best bit, from a constitutional, separation-of-powers perspective: A cabinet officer of the federal executive gets to unilaterally and retroactively interpret the will of Congress without any pesky interference from the courts.
Pretty nifty, yah?
** 10-05-2018 Original link gone; replacement found (0riginal was a lex post 03-23-2010 Bill of attainder) – Ed.