November 9, 2012
Gowder: Death and Taxes in NFIB v. Sebelius
This paper attempts, using philosophical methods, to make sense of the Chief Justice’s distinction between the individual health insurance mandate understood as a command under the commerce power and understood as a tax.
Roberts argued that the commerce clause does not authorize Congress to compel citizens to participate in interstate commerce, but that the tax clause does allow Congress to tax citizens’ decisions not to so participate. This position suggests (as does Roberts) the proposition that taxes do not compel in some relevant sense; accordingly, Roberts drew a drew a distinction between a commerce power regulation, which “restricts” a citizen’s “lawful choice” to do or not do some act, and a tax, which allegedly does not work such a restriction.
In this paper, I interpret that part of Roberts’s argument in the spirit of the principle of charity, with the aim of understanding the opinion in its most convincing form. The analysis focuses on the notion of a “lawful choice.”
Section 1 supposes that the word “choice” does the work; I show that Roberts’s argument is not sustainable when interpreted as the claim that the mandate does not interfere with citizens’ choices to not purchase health insurance.
Section 2 supposes that the work is done by Roberts’s claim that Congress does not have the power to “compel” citizens under the taxing clause. I consider whether the argument can be charitably interpreted as the claim that, while the individual mandate is an interference with citizens’ choices not to purchase health insurance, it is not a coercive interference within the meaning of a plausible conception of coercion. This interpretation fails too.
Finally, section 3 supposes that the word “lawful” does the work. This version of the argument succeeds: the Chief Justice’s claim can be charitably understood as an interpretation of what it means for an act to be unlawful. For the state to say that an act is unlawful and impose a penalty on it is to express disapproval of that act; no such disapproval is expressed merely by taxing an act. NFIB v. Sebelius raises this expressive aspect of outlawing to constitutional significance.
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From this summary, it appears that the argument is: Coercion is constitutional if it is done by taxation rather than through criminalizing failure to comply.
That proposition is hard to accept, especially since the law criminalizes failure to pay taxes. If every law which relies on this reasoning expressly waives seizure or criminal enforcement of the tax liability (as was done in ObamaCare), then the author's reasoning could be maintained.
Posted by: AMTbuff | Nov 9, 2012 2:46:56 PM
Trying to eke out reason from Robert's ruling is like trying to understand women. It's futile and a laugh to apply some academic understanding to it. The decision was nothing but a cowardly abandonment of duty in response to intimidation of the court. Obama learned well from FDR, who did the same thing with his Court on Social Security. That's analysis enough.
Posted by: Woody | Nov 9, 2012 9:12:13 PM