Back in 2010, Georgetown Law professor Randy Barnett, who has been described as the legal architect behind challenges to the health care law, wrote a paper on the unconstitutionality of Obamacare in which he issued the following warning about the Obama administration’s taxing power claim:
“(T)he government’s tax power theory is far more radical than the Commerce and Necessary and Proper Clause theory precisely because the Supreme Court has generally deferred to any invocation of the tax power to raise revenue to spend for the general welfare. This normal deference is why the mandate’s defenders shifted the argument from the Commerce Clause to the tax power. Yet if its theory is accepted, Congress would be able to penalize or mandate any activity by anyone in the country, provided it limited the sanction to a fine enforced by the Internal Revenue Service.
This is a congressional power unknown and unheard of before 2010. It would effectively grant Congress a general police power. And we know what existing doctrine says about such a power: ‘The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.’ Such has been the Supreme Court’s position from the Founding until today.”
Yet in the wake of the Chief Justice John Roberts’ majority decision to uphold the mandate on taxing power grounds, Barnett has been downplaying the legal significance of that precedent, especially relative to the Court’s ruling that the law was not allowable under the Commerce Clause. This morning I asked him why his views had changed on the dangers of the taxing power since he wrote the paper.
“Chief Justice Roberts rewrote the (health care) statute to change this from a requirement, or mandate, to an option to buy insurance or pay a penalty,” Barnett explained. “This is far less dangerous than had the mandate been upheld under the commerce power. Because a Commerce Clause regulation could be upheld up to and including imprisonment as drug laws are, but this power is limited to paying a tax (for those who pay taxes) and can be as politically toxic as taxes are.”
I asked him whether a future Congress could just repeat what we saw in this instance – call a mandate a penalty for the purposes of passing the bill, then switch around and call it a tax in court.
“That is never going to happen again,” he insisted. “No one is ever going to fall for that again…The findings in the (health care) bill were Commerce Clause. The findings in the next bill will have to be taxing power.”
In other words, future Congresses would have to explicitly use taxing power justifications for any future economic mandates.
He predicted, “We have years before any future Congress is going to work up the nerve to do anything like a broccoli mandate. If we don’t change the political and legal culture between now and then, broccoli mandates are going to be the least of our worries.”
Despite the adverse policy outcome for supporters of limited government, Barnett said the decision advanced the legal cause for limited government.
“Congress can’t do whatever it wants,” he said. “Under this ruling, Congress can’t put you in jail for violating a future economic mandate. This holding stands for that proposition. Congress also can’t coerce states by withholding all existing Medicaid funding unless they agree to new coverage. That’s a constraint the Court has never enforced before. And the Necessary and Proper Clause cannot be used to salvage these laws. And that’s a ruling we haven’t had before.”
He continued, “This is big. And it’s only the stinging disappointment of not being able to take down Obamacare that conceals how big this was. Every one of our arguments got accepted by five justices. Every one.”
