Free Markets, Free People

Health insurance mandate – Obama administration now arguing it is a tax

Having made it up as they go, the Obama administration is now arguing that the mandate to buy insurance coverage under Obamacare is a perfectly legal tax.

That, of course, after the President denied it was a tax in order to sell it:

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

You can tell he was a constitutional expert when he taught, can’t you?

So much so that the Department of Justice, in a brief defending the law, claims it to be a "valid exercise of the Congressional power to impose taxes:

Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

Except Congress doesn’t argue that at all.  Instead it relies on the Commerce Clause as its justification for the mandate:

Congress anticipated a constitutional challenge to the individual mandate. Accordingly, the law includes 10 detailed findings meant to show that the mandate regulates commercial activity important to the nation’s economy. Nowhere does Congress cite its taxing power as a source of authority.

And then, per the White House, if any additional authority is needed – other than the power to define and then levy taxes (Congress) or the commerce clause, why just consult the General Welfare Clause.  They have more Constitutional ways to make you buy something you may not want than you can imagine:

“The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law,” Mr. Pfeiffer said. “To the extent that there is any question of additional authority — and we don’t believe there is — it would be available through the General Welfare Clause.”

One has to assume they just plan on overwhelming the Court with as many “viable alternatives” as it takes to get their way.

One Yale professor says the tax argument – the one Mr. Obama denied – is the strongest argument:

Jack M. Balkin, a professor at Yale Law School who supports the new law, said, “The tax argument is the strongest argument for upholding” the individual-coverage requirement.

Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.”


Smoke, mirrors, deceit and debt.  That’s what you get for trusting a snake-oil salesman with your health care.  Oh and this:

“This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.

If this survives the court challenge, it won’t be the last – trust me on that.

The irony, of course, is the Constitution was written to limit government and keep it off our back.  Instead it is now being used to expand government and intrude more and more deeply in our lives.


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24 Responses to Health insurance mandate – Obama administration now arguing it is a tax

  • It is obvious that what we are witnessing are those multiple truths of political science that the Professor is always talking about.

    • Excellent, kyle! You’re on the right track.

      Now, doesn’t that little condenscending heat pat feel good?

      Let me take this opportunity to summarize some of the principles you speak of, so that you call can understand clearly the wonder and magnificence that is Obama, PBUH.

      1. The world is a random, complex, and totally unpredictable place. We have all kinds of quantum things like querks superposing and killing cats in boxes because of Hindenburg Uncertainty.

      2. We have, as you pointed out, multiple truths. These are socially constructed. Some of them need to be emphasized because they serve the cause of our journey to leftist salvation. Those need to be defended against dense righties and their childish reliance on “logic” and “reason” and “evidence” and other obsolete concepts.

      Some of those truths are useful at different times, and there’s no contradiction between them despite the imaginings of fevered righties. So the healthcare mandate sometimes needs to be a tax, and other times it does not, depending on what we wise leftists need it to be at any time. I don’t understand why you thick righties have such trouble with that concept. I’m sure if you took my online course, you would get it.

      Other multiple truths need to be discarded because they do not serve our journey to salvation. Thus, the idea (which was socially constructed on the dense right) that Sarah Palin was more experienced and qualified than Obama with his christlike visage is a double-plus ungood untruth. And no so-called evidence of her executive experience, or fanciful descriptions of supposed mistakes by Obama, can change that. I decree it. Besides, a random leftist said she got some free kitchen redecorations, and that obviously disqualifies here ethically from serving in government.

      3. There are no contradictions or lies in using multiple truths in furtherance of leftist salvation. I just don’t understand why you dense righties are all the time accusing me and other wise leftists of lying. We never, ever tell a lie. We just use different multiple truths at different times, and there’s nothing even slightly dishonest or unethical or fraudulent about that.

      So I can praise post-modernism and assert its validity in one post, and then come back later and say I don’t buy it, and never admit any contradiction. I can even assert that you guys are really the post-modernists because you do cherry picking of your data, even though that has nothing to do with post-modernism, which by the way I understand completely. Those are not lies or distortions! They are merely multiple truths that are useful at different times.

      4. Speaking of morals and ethics, you dense righties need to get over this ridiculous notion of natural rights. The entire area of rights is another place where randomness rules, as carbon-based forms of life can come up with any rights they want. Of course, only carbon-based forms of life that are wise leftists can impose their rights on others, but that’s as it should be. We don’t want to be forced to follow rules created by lobsters, do we? Even lobsters with Sarah Palin’s full lips and ample bosom, like the one I saw at the market here in East Mooseport recently.

      5. The economy is totally random and must be guided by wise leftists too. The market does not adjust itself, there’s no reason to believe it does.

      6. Anything that looks like it might be a slightly valid criticism of a wise leftist such as Obama doesn’t really apply because some dense rightie did it even more. Like Bush.

      So see, it all comes together to prove we that wise leftists need to tell everyone else what to do. Otherwise, randomness just takes over everything! We have complete and irrefutable reasons why that’s true.

      Besides, you sterile, inbred, mindless, Nazi-like righties can’t hope to cope with this complex, random world without us, so why do you resist us so much? Just put down your guns, forget your completely ineffective tea parties that only draw a few hundred people no matter what the photos and other so-called “evidence” says, and go back to voting for wise moderates like Olympia Snowe, who understand intuitively how important it is to give in to wise leftists on important matters like financial regulation. Then everything will work out fine, and we’ll be enlightened, peaceful, orderly societies like all the Europeans. Heck, maybe we’ll even let you keep a gun or two. For a while. As long as it doesn’t have any bullets.

  • “This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.”

    Maybe this is the first time Congress has *directly* ordered us to purchase a good or service, but we are ordered *indirectly* all the time.  Instead of being lumped together with every other spending item paid for by the usual taxes and borrowing this item has been ‘earmarked’, so to speak, by having its own separate tax.

  • Now it’s a tax… on what? If a citizen doesn’t purchase a product or a service, there’s no commerce. There’s not an exchanged product or service to tax. Either argument for the Obamacare mandate is baseless.

  • Any way you cut it…on whatever pretext…IF this is allowed to stand by the courts, our Republic is finished…and its charter voided.
    It will be time to restore it, on the same predicates as before, for those of us who will not live in that kind of state.

  • overwhelming the Court with as many “viable alternatives”

    The only problem with this tactic is that when the court strikes it down, you have nothing left

  • For an additional commentary on this matter and a chance to discuss other aspects of it, see my statement on “Good health care” on my blog at

  • I’m not a legal scholar, but I don’t see a problem with the SCOTUS finding this to be perfectly constitutional.  No matter what The Dear Golfer and his fellow thugs hinted, implied, said or otherwise promised to get this law passed, the Congress has the power to levy taxes.  The intended use for those taxes, it seems to me, have been rendered immaterial by about seventy years of precedent*.

    “This is the first time that Congress has ever ordered Americans to use their own money to purchase a particular good or service,” said Senator Orrin G. Hatch, Republican of Utah.

    Sorry, senator, but I think you’re wrong.  We pay taxes to “purchase” unemployment insurance from the .gov.  We pay taxes to “purchase” a retirement / disability plan (Social Security), as well as medical insurance (Medicare).  The states force us to purchase auto insurance, homeowners insurance, flood insurance, etc.  Businesses have to pay for various types of insurance, too.  All perfectly legal, and all perfect precedent for the SCOTUS to find this law to be constitutional.


    (*) See especially Mr. Justice Cardozo’s opinion in Seward Machine Co. v. Davis, 301 US 548 (1937)

    • Unemployment tax is state level, not federal, very very big distinction.
      SS and Medicare taxs are similar, except that you are “purchasing” a gov’t solution, not a private solution.  The “mandate” requires purchase of a private solution which I am not sure has been done, constitutionally, before in our short history.

      • ScottHUnemployment tax is state level, not federal, very very big distinction.

        A distinction without a difference.  The tax may be collected by the state, but it is dictated by the feds.  This, as I understand it, was part of Seward Machine’s argument… which the SCOTUS rejected.

        The “mandate” requires purchase of a private solution which I am not sure has been done, constitutionally, before in our short history.

        I agree with your argument, but I don’t think it will cut ice with the majority of the justices.  I suspect that their attitude will be much as it was in Seward: the country faces a crisis so grave that nitpicky constitutional arguments can AND SHOULD be ignored.  As for precedent, they will find whatever precedent they need even if they have to look at foreign law to do so, and they’ll go home at the end of the day feeling virtuous for having helped so many people.  It’s a collision between the need to do good and the need to do justice (i.e. follow the law); I think justice is going to come off second best in this case.

      • Do you own a car? Most states require you to purchase insurance. In some states it is a criminal offense to own an uninsured car. If it is constitutional for the states, I daresay it will be held as constitutional for the feds. 

        Any court that upholds Wickard v. Filburn or the Kelo case will not hesitate to enforce a mandatory health insurance purchase.

        • States require you to buy car insurance only when you choose to purchase a car. It’s a choice. You don’t have to purchase the car. So you don’t have to purchase car insurance. And there is no penalty/tax if you choose not to buy.
          Huge difference.

  • ” You don’t have to purchase the car. ”

    But you do have to own a body, at least on this plane.
    If you hava a car, you have to insure it. If you have a body, you have to insure it. Not such a huge difference.

    • The day I have to purchase a body to exist in one is the day I no longer wish to exist- lol! Purchasing a car is commerce, though that is not the reason for the insurance. Simply existing inside a body is not commerce, and should not be regulated or taxed as such.

      • ” Simply existing inside a body is not commerce, and should not be regulated or taxed as such.”

        No, it shouldn’t, but I suggest you google the cases I mentioned,
        Wickard v. Filburn or the Kelo case. The supreme court and the political class seem to differ; to exist is to be taxable.

    • Stupid argument, Tim.  You purchase mandated  insurance on your car to protect other people from your liability.  In some states,  it is possible to avoid purchasing insurance by showing proof you can pay a judgment.  Besides all that, auto insurance is not a federal requirement.  it is a state requirement.  You have this subtle belief that the Federal government is not regulated by the Constitution.