Even in the Mirror Universe, Obamacare isn’t constitutional

Professor Akhil Amar is well known to PLF Liberty Blog readers: he’s the guy who likened the Florida decision invalidating the Individual Mandate to the Dred Scott decision that declared black Americans to be less than human. He and Todd Brewster have a new article out today which seeks to defend the Individual Mandate by transforming it into something else. This sort of logic, as Lincoln said, would transform a horse chestnut into a chestnut horse.

First, Amar and Brewster argue that the Mandate’s just a tax: “Had the bill explicitly used the word ‘tax’ instead of ‘penalty,’ the fatal flaw of the constitutional challenge would be obvious to all. The Constitution undeniably gives Congress sweeping power to tax. And if Congress can tax a person, and then use that tax money to buy a health-care package for that person’s benefit, why can’t it simply direct the person to procure the package himself, or else pay a higher tax?”

In other words, if the Individual Mandate were designed differently than it actually was, it might have been constitutional. Well, on that we agree. But the fuller answer is twofold.

First, the very reason why Congress avoided using its taxing powers over the debates (if something so riddled with procedural irregularities can be called a “debate”) leading up to passage of the PPACA is that doing so would have been politically unpopular. The Act would not have passed on those terms. In other words, it was an intentional effort by PPACA’s proponents to get around the constitutional democratic process. And it has long been a mainstay of constitutional law that courts should be most suspicious of these sorts of manipulations. If one holds that one of the major purposes of the judiciary is to ensure that the deliberative process is followed in letter and in spirit. If Amar and Brewster think the Mandate would pass muster if it were redesigned as a tax, then by all means, let’s go back and try passing it that way, and see how far it gets.

But Amar and Brewster’s broader point is that if it the Mandate works in the same way as a tax, that it should still be constitutional even if called something else. But as we saw earlier today, the Mandate does not work as a tax. Congress was not particularly interested in raising revenues; it was interested in using the penalty as just that: as punishment for failing to comply with the Mandate. We know this because failing to comply with the Mandate is not characterized in PPACA as a lawful choice on which you are required to pay a tax—it is instead structured as an unlawful act which is penalized. Taxes are designed as alternatives: you can choose to take your income now or put some of it into a special retirement fund, and the different choices have different tax consequences, and neither choice is more lawful than the other. By contrast, PPACA declares that every person must obtain “minimum essential coverage,” and any person who doesn’t is liable to pay a penalty. One can only liken this to a tax in the same way that one can liken a speeding ticket to a “tax” on driving too fast, or civil fines from the EPA to a “tax” on polluting. None of these are taxes—they are penalties for failing to comply with duties imposed by law. If it “works,” the Individual Mandate won’t gather money for the federal government. Thus it’s not a tax.

Amar and Brewster are no less adroit at re-writing PPACA when it comes to the Commerce Clause: “an obvious interstate problem arises when sick out-of-state patients lack insurance, and their emergency-room visits end up being paid for by host-state taxpayers. Obamacare solves this problem by generally requiring Americans to get insurance.” But the Mandate has nothing to do with interstate travel, because it is not pegged in any way to interstate travel. Requiring persons to obtain insurance when going from state to state would be one thing. But PPACA requires all persons except the poor and legal and illegal foreigners to obtain insurance.

This lack of “narrow tailoring” is important because traveling from state to state is considered a “fundamental right” under the Constitution—meaning that even if the Mandate had something to do with interstate travel, there’s little doubt it would be struck down as unconstitutional.

The same goes for Amar and Brewster’s theory that the Mandate helps people to get jobs in other states. Applying the Mandate as a condition of traveling to other states for employment would have to meet the demanding strict scrutiny test, which the Mandate cannot do, since it applies to people who never leave the state, and doesn’t apply to non-citizens, who probably cross state lines for this purpose more than anyone else. Thus even Amar and Brewster’s Mirror Universe version of Obamacare would fail the test.

The Individual Mandate cases aren’t going to be solved by re-writing the statute now. Either Congress has power to force everyone to buy insurance because not buying it has some long-standing effect on interstate commerce, or it doesn’t. To revise the law or its history after the fact is simply a confession of the weakness of the logic on that side of the debate.