How would you like our federal government to tell you to install
new energy-efficient windows or make your next new car a Volt?
The Obamacare opinion gives Congress a roadmap to do precisely
that. As most of us know, Chief Justice Roberts wrote an opinion
that the four liberal Justices joined in which he held that the
Obamacare mandate was a constitutional exercise of Congress’s tax
powers. Not that the mandate, and its penalty for non-compliance,
are taxes like other taxes within the meaning of the
Anti-Injunction Act, which we would have to pay then sue to
recover, mind you, but “taxes” of some other kind.
Chief Justice Roberts said that the penalty was a tax because it
(1) wasn’t more than the cost of insurance, and, in many cases,
would be less; (2) didn’t require an intent or state of mind; and
(3) even though collected by the IRS, couldn’t be enforced by
criminal prosecution or other means “suggestive of a punitive
sanction.” This suggests that a $50 penalty, collectible by the
IRS, for failing to install energy-efficient windows would find 5
votes for its constitutionality in the Supreme Court.
Significantly, it was Chief Justice Roberts who tossed that $50
figure out. What if the penalty were greater, say the cost of
installing an energy-efficient window on each window in your house
or structure? What about a penalty of the difference between the
price of the electric car you didn’t buy and the price of the car
you did? We don’t know.
Chief Justice Roberts tells us not to get too excited. The new
power has limits, even though the Court hasn’t looked closely at
“the regulatory motive or effect of revenue-raising measures”
lately. Nonetheless, as he says, “We do not suggest that any
exaction lacking a scienter requirement and enforced by the IRS is
within the taxing power.” Whew! That’s sure a bullet dodged!
We’ll just have to wait for the next time Congress uses this
power and a challenge winds its way to the Supreme Court to see how
far Congress can go. All we know is that some “exaction[s] lacking
a scienter requirement and enforced by the IRS” will be OK, and
others won’t.
Now who, exactly, would take advantage of this new power? The
Democrats who rammed the Obamacare bill through Congress weren’t
thinking of this penalty as a tax (as the dissent notes, they
called it a “penalty” 18 times), but they got a gift in the form of
a new power. Folks like Sherrod Brown, Claire McCaskill, and John
Tester voted for the bill the first time, and there’s little reason
to doubt they’d do it again. Any question whether Elizabeth Warren
or Tim Kaine would follow the playbook that Chief Justice Roberts
gave them? And, that’s just the folks in some of the contested
Senate races.
Not that the members of Congress who cooked up a new mandate
wouldn’t be coy about it. They would have to be. Micro-management
is hard. The Soviet economy showed that. When the Soviet Five-Year
Plan called for the production of a specified number of nails, lots
of small nails were produced; when the quota was stated in weight,
larger heavier nails were produced. What mattered was meeting the
quota, not the need for nails of all sizes.
So Congress won’t just say “buy” broccoli or an electric car or
install energy-efficient windows. It will tell the Secretary of
Health and Human Services to promulgate regulations to encourage
the consumption of broccoli and permit the agency to enforce its
regulations through a penalty paid to the IRS. For energy-efficient
windows, Congress would go to the Department of Housing and Urban
Development and for electric cars to the Department of
Transportation. Then, the agencies will have to think about how to
make us eat more broccoli, live in a house with energy-efficient
windows, and drive electric cars.
No matter who does it, the new power to do something through tax
penalties that cannot otherwise be done through regulation is
nothing but a prescription for more bureaucratic intrusiveness.
And, once again, it’s the congressional Democrats (those lovers of
the federal administrative state) who empowered HHS Secretary
Sebelius and her minions to write jillions of pages of new federal
regulations in the Obamacare bill. Don’t be surprised if they do it
again.
Here, Chief Justice Roberts reenters the picture, accompanied by
William Kristol. Roberts observed, “It is not our job to protect
the people from the consequences of their political judgments.”
It’s up to us to make better political judgments. And, some time
ago, Kristol noted, “An election is a terrible thing to waste.”
Let’s not waste this one!
