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Wednesday, November 9, 2011

D.C. Circuit ObamaCare Case: 'The Tax Code Is Never a Walk in the Park'

Orin Kerr (George Washington), The Case for Not Deciding the Constitutionality of the Mandate:

Judge Kavanaugh wrote a separate opinion in the DC Circuit’s mandate case that many readers will overlook: It’s based on the tax code, and the opinion itself acknowledges that its analysis is dense and difficult. (“The Tax Code is never a walk in the park. . . . I caution the reader that some of the following is not for the faint of heart.”) At the same time, Kavanaugh’s opinion closes with a very interesting prudential case for not deciding the merits of the mandate, and instead deciding the case on Anti-Injunctive Act grounds (see starting at page 51). Among them, Kavanaugh argues that if the Court doesn’t decide the issue now, it may never have to decide the issue because the statute could be easily amended to make the mandate easily constitutional under the taxing power.

(Hat Tip: Greg McNeal.)

http://taxprof.typepad.com/taxprof_blog/2011/11/dc-circuit.html

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Comments

"the statute could be easily amended to make the mandate easily constitutional under the taxing power."

"Easily" amended? By elected representatives of a voting public that opposes the entire health care reform package and that opposes large new taxes even more strongly?

Easily only in some fantasy world where elected representatives embrace political suicide. The mandate exists now precisely because the votes were never there for a major new tax coupled with direct outlays for health care. The two approaches have similar economic effect, but they are worlds apart politically.

"Easily"? Kavanaugh's argument is self-refuting based on that one word. "In theory only" is more like it.

Posted by: AMTbuff | Nov 9, 2011 5:25:42 PM