Jonathan Rauch on the Individual Mandate Case

(Ilya Somin)

In general, I am a big fan of the work of columnist Jonathan Rauch. Unfortunately, his recent column on the individual mandate case is not one of his better pieces. The problem is not that he comes down on what I think is the wrong side of the issue, but that some of his points are factually inaccurate, while others ignore major counterarguments. Rauch claims that “no one disputes that the so-called mandate would be constitutional if you relabeled it as a tax,” that the case against the mandate is inconsistent with “conservatives’” previous opposition to judicial “activism,” and that, if the Court strikes down the mandate it will lead to socialized medicine.

Rauch’s tax point is factually wrong. The opponents of the mandate have consistently argued that the mandate is a penalty, not a tax, for reasons that go beyond labeling. I summarize that argument here:

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse. It could use this power to force citizens to buy virtually any product, including broccoli, General Motors cars, or anything else.

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose….

[T]he mandate is not a tariff, impost, income tax, or excise tax [;] it is either [an unconstitutional] direct tax or no tax at all.

Paul Clement makes the same points in greater detail in his Supreme Court brief for the plaintiffs (pp. 51-64). These are also some of the reasons why, at the oral argument, even the liberal justices expressed great skepticism about the tax argument.

The issue of labeling, however, is not just a minor technical detail. If, as many defenders of the mandate claim, the only constraint on the tax power is political accountability, then accurate labeling is important to ensuring that political accountability is effectively imposed. Had the supporters of the mandate labeled it a tax from the start, it very likely would not have passed.

Rauch also claims that the case against the mandate is inconsistent with conservatives’ previous views on judicial review. Some conservatives have opportunistically switched sides on the mandate, as also have many liberals. However, many of the conservative and libertarian opponents of the mandate have been arguing for decades that we need strong judicial enforcement of limits on federal power. Since the constitutional arguments in favor of the mandate would give Congress virtually unlimited power, it would have been inconsistent with our previously expressed views on the importance of limits if we didn’t argue that the mandate is unconstitutional.

Longstanding conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And there is certainly a strong case against the mandate based on the latter.

Finally, Rauch argues that a decision striking down the mandate will galvanize liberals and pave the way for national health insurance. This claim ignores the existence of many other policy options that could address the problems the mandate is supposed to solve, including many that are more market-friendly than either the mandate or nationalization. That may be why very few liberal supporters of nationalization actually want the mandate to be repealed. It’s certainly possible that a decision against the mandate will anger liberals. But it’s doubtful they will be able to make much political hay out of a decision invalidating a law that the vast majority of the public opposes and actually wants the Court to strike down.

UPDATE: I have chosen to ignore Rauch’s rhetorical pretense that he is channeling the views that the late Senator Ted Kennedy would hold if he were still alive. I think this is just a clever device to express Rauch’s own views on the case. However, I would be happy to post a correction if it turns out that Rauch really doesn’t agree with the claims made in the piece.