Is The Mandate Really a Tax?

The majority decision of the Supreme Court today says that it is. Chief Justice Roberts agrees, saying, “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness”.

But there’s a big problem with that interpretation.

The Obama administration claimed that the mandate penalty was not a tax. The legislation is written in a way that affirms this, and clearly imposes a penalty, not a tax. These are not the same thing.

In their dissenting opinion, justices Scalia, Kennedy, Thomas, and Alito make an extremely compelling argument for why the majority decision falls completely outside the competence of the Court:

It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.

In answering that question we must, if “fairly possible,” Crowell v.  Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat).    But  we  cannot rewrite the statute to be what it is not.  “‘“[A]lthough this Court will often strain to construe legislation  so  as  to  save  it  against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’”  … In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brogden, 112 U. S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” … In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that  any exaction imposed for violation of the law is an exercise of Congress’ taxing power—evenwhen the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty.


…to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Actof 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. … Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

Some are already advocating that conservatives not blow a gasket over Chief Justice Roberts’ unexpected move to the dark side, defending his decision (or at least his style). At RedState, Erick Erickson says that Roberts “forces everyone to deal with the issue as a political, not a legal issue,” and that “while Roberts has expanded the taxation power, which I don’t really think is a massive expansion from what it was, Roberts has curtailed the commerce clause as an avenue for Congressional overreach.”

But the dissenting opinion of the four justices cited above (which should be read in its entirety, since it’s far too long to be excerpted properly here) makes it clear that this is an unprecedented expansion of the taxation power. And if Roberts is getting credit for making this a political issue, it’s because of this little gem in his opinion:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

While on some level I appreciate the “you broke the country, you bought it” line of reasoning, this is, I think, a massive cop-out on the part of Roberts. His job is to rule on the constitutionality of a piece of legislation, not play Pontius Pilate and wash his hands of the affair before him. And as the four dissenting justices so articulately explain and substantiate, this legislation was not written as a tax, so it ain’t constitutional to try to make it one. The Supreme Court doesn’t get to re-write legislation to make it legal. It gets to decide whether the legislation, as written, is legal or not. Passing the buck back to the American people for their electoral choices is a dereliction of duty.

This is carte blanche permission for judicial activism, co-signed by a Chief Justice who was supposed to be a constructionist savior when the chips were down. Whatever happens next with health care legislation, this doesn’t bode well for future thorny issues of constitutionality that may come before the SCOTUS, not least of which may be the next credible challenge to Roe, whenever it shall appear.

UPDATE: I had missed the more obvious quote from Roberts punting this issue back to the voters. He said, “It is not our job to protect the people from the consequences of
their political choices.”

I disagree with him. It is the job of the court to protect the people from the unconstitutional legislation put forward by our political choices. Just because we make the mistake of electing people who don’t respect the law doesn’t give the SCOTUS the right to not defend the law from those very people. There’s a reason why we have three branches of government, and this was a perfect (and missed) opportunity to demonstrate that.



  • Joannie

    Yes the mandate and the whole health care law is a tax which means it cannot stand as law, as Ben Stein said on our local news channel WXIX TV he explains why it is a tax and why originally it was claimed NOT to be a tax. Go to, click on Reality Check and watch the video report (from last Friday) and see for yourself. It will NOT go into law or be enforced (even thought the SCOTUS) said it was legal (just like abortion). People cannot be taxed in order to be forced to buy health care. And if it were legal, why all the lawsuits from local and state governments for the last year. It is not legal, Constitutional or lawful because it a tax forced on the American people. And that is the Real Story.

  • Greg

    It seems that the crux of the issue is whether the penalty for failing to purchase insurance was, in fact, a penalty vice a tax. The dissenting argument in the excerpt above argues that “In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.” While it may be true that they had never in the past have deemed a penalty to be a tax, the fact that they have done the reverse indicates that the court has the power to determine what a piece of legislature functions as vice what it is presented as. In this case, you can certainly make the argument that the law functioned as a tax. Suppose that they had worded it so that the penalty was a tax, and you could write off that tax if you purchased health insurance. Functionally it would be identical, even though it’s packaged and presented as something different. It’s like Obama’s contraceptive mandate compromise. Functionally it changes nothing, even though it’s presented in a different manner. Ultimately, I’m not saying I agree with the healthcare bill (I don’t), but I don’t think Justice Roberts was entirely off mark in his decision today. Just my two cents worth.


    Dear Steve: You write: “It is the job of the court to protect the people from the unconstitutional legislation put forward by our political choices.” Of course, this is exactly the argument against passing on gay marriage by popular vote. – Pax tecum, Greg

    • Joe M

      Greg. Can you point to the place in the constitution where a specific definition of marriage is protected?

  • Leila

    Take a little more time. This may be very, very good. Roberts may have just stuck it to Obama, right where it hurts:

    Some pro-life attorneys I know, who worked on the case and were there for oral arguments, speculated that Roberts might do something like this. And it may be a very good thing for conservatives in the end. I am quite a bit more hopeful than I was this morning.

    • Joe M

      Leila. I tried for a moment to ease my disappointment with reasoning similar to that link. But, then I realized that the powers expanded by Roberts completely trump any limitation of the Commerce Clause. All legislators have to do is say that they need a tax to implement a broccoli program and people can then be taxed for failing to finish dinner. Whether money you have to pay is called a tax or a penalty is just semantics. — Steve is absolutely right. This is a horrible ruling and Roberts’ reasoning is surprisingly weak.

      • Will B

        “All legislators have to do is say that they need a tax to implement a broccoli program and people can then be taxed for failing to finish dinner.” Well said!

        Bizarrely, Roberts begins his opinion by paying homage to the enumerated and limited powers of the Constitution. But by permitting Congress to compel conduct or be taxed, Roberts has abrogated any remaining limits on federal power.



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