The individual mandate is the funding mechanism for a government program — without it, that government program doesn’t work. Obama’s lawyers made this very case in the yet-to-be-decided Florida suit when they maintained that health insurance is a “financing mechanism.” Peter Suderman of Reason Magazine observes:
Moreover, if it’s really just a revenue-raising mechanism, a way for the government to pay for health care, then aren’t they saying that the insurance premiums paid to health insurance companies [are] actually taxes? This is different from the administration’s argument that the penalty for not complying with the mandate is a tax. Instead, they’re effectively describing the premiums themselves as taxes — financing mechanisms that the government uses to pay for care.
By forcing those who can buy health insurance to buy it, the feds will have more funds to pay for the health insurance of those who can’t buy it. Private health insurance is the linchpin by which a government program works — and we’re not going to call it a tax?
Also, the cost of health insurance is much more than what many Americans pay in income taxes and payroll taxes combined, and these are the largest sources of revenue to the federal government. So if under the law it’s not a tax, then the individual mandate is worse than a tax; it’s some entirely new mutant species of government imposition.
On page 29 of his opinion, Hudson notes that Virginia had contended that the feds were trying to “smuggle an unconstitutional exercise of the Commerce Clause past judicial review in the guise of a tax.” If Hudson’s ruling on the tax question stands up on appeal, then the constitutional question will hinge on the long-abused Commerce Clause.
Perhaps Obama’s lawyers could have brought ObamaCare within the penumbra of the General Welfare Clause had they argued that an insurance premium paid to a private company is a tax. Maybe they’ll try to argue that in the appeals. It’s less crazy than arguing that a penalty is a tax. But it would be an admission that Obama broke his campaign promise not to raise taxes.
On Tuesday January 18, Florida Attorney General Pam Bondi filed a motion to add six more states to the Florida suit, bringing the total to 26 (see the Lawsuit Map here.)
For ObamaCare, “critical mass” seems to be approaching.
Jon N. Hall is a programmer/analyst from Kansas City.
