Is the PPACA’s “tax” constitutional?
Our friends at Florida’s James Madison Institute have published my article, “Is The PPACA’s Tax Constitutional?” in the latest issue of their Journal. You can read it online here (page 40). In it, I talk about our lawsuit on behalf of Matt Sissel, challenging the Individual Mandate provision of Obamacare that the Supreme Court characterized as a “tax” in NFIB v. Sebelius. Here’s a taste:
The NFIB decision satisfied practically nobody. If, as some have suggested, Chief Justice Roberts was emulating John Marshall’s Marbury v. Madison decision, that effort failed, because it resulted in an unworkable refashioning of the statute, one for which neither side contended, and which neither side now fully accepts. In fact, NFIB may be the anti-Marbury. Chief Justice Marshall’s opinion is a masterpiece because it asserted the Court’s rightful constitutional power while tactfully withdrawing from a political dispute in which the judges were ill-suited to defend themselves. He accomplished this with a masterfully logical unanimous opinion. NFIB, by contrast, resulted in an illogical opinion that withdraws the Court from its proper constitutional role, and does so solely as a function of political considerations. It also resulted in multiple, overlapping opinions, such that it is unclear now which parts of the opinion are even binding precedents. It imposed an implausible reading on the statute, which raises more constitutional problems than it resolves. Whether the Court can clean up the mess it has created can only be determined by future litigation.