A Further Perspective

The Obamacare Decision and Its Electoral Consequences

How Congress will put its new taxing powers to good Democratic use.

By 7.30.12

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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!

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.