Is the Obamacare Decision Internally Consistent?

My column is up at, and has a few quick thoughts on the decision.  A brief excerpt:

Second, though, I am really confused how financial penalties on states can be read as an effective mandate, and therefore un-Constitutional, but financial penalties on individuals do not constitute an effective mandate (if they did, this very ruling says that such a mandate would be illegal).   Using financial penalties to coerce action is either the equivalent of a mandate or it is not, but the decision seems to take two opposite stances on this question.


  1. Stan:

    Yeah I think it's quite a stretch to think a mandate = tax. Perhaps CJ Roberts made a killing off of Intrade.

  2. Hasdrubal:

    I think he looks at the relative weights of the penalty. When talking about Medicaid:

    "The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion."

    But when he's talking about the individual mandate:

    "The payment is not so high that there is really no choice but to buy healthinsurance;..."

    So, it's small enough that the decision to participate or pay the penalty is reasonable, it's a Constitutional tax. (10% shows up in the medicaid ruling and also in the mandate argument, where he quotes a case where a tax of 10% of revenue for using any child labor was found unconstitutional. I think. Been reading this while trying to do work.)

  3. stan:

    So now Roberts wants to be the arbiter of tax reasonableness?

  4. John:

    If it's a tax, is it tax on my free choice?

    This ruling raises more questions than it answers.

  5. Methinks:

    Ilya Somin at Volokh Conspiracy argues that it's not a tax. But not all taxes are constitutional either. So, saying it's a tax does not make it a constitutional tax. It's a penalty.

  6. Fred:

    FYI Coyote . . .

    "(irregardless of whether the President and Congress denied that it was a tax)."

    Irrespective or regardless, no such word as irregardless.

  7. caseyboy:

    Apples and oranges here. The individual mandate penalty turned tax applies to individuals who do fall within the Federal tax authority. Although in this instance it is a stretch to claim that previous taxing authority covered this type of application. Justice Roberts created a new category of taxing authority, in-activity taxing.

    However, the state medicaid mandate turned Federal coercion does not relate to any taxing authority. The Feds cannot assess taxes on states themselves, only the citizens thereof and then only when applied equally throughout the nation.

  8. jackie:

    Roberts' convoluted decision only seems like a betrayal of conservative principles. What would have happened if he had sided with the four right of center justices and overturned the ACA? It would have been used to great advantage by Obama to garner huge contributions for himself and the Democratic Party, both of which are struggling now. His party base which has been running away would have rallied around. In short, such a decision would have assured Obama's reelection.

    You may damn Roberts for making a political calculation and tossing aside constitutional law, but you should be thankful that he is smart enough to see the existential danger posed by a near psychotic narcissist. This country will be in turmoil, possibly civil unrest or worse if Obama is reelected. Roberts did his part to see that doesn't happen and at the expense of his own reputation.

  9. Craig:

    I would like to believe that John Roberts had some grand scheme in mind that will make this decision an ultimate victory, but I just don't think that's the case.

  10. IGotBupkis, Faecies Evenio Mr. Holder?:

    BTW, I'm still trying to figure this out --

    OK, I get the idea that there is a consumption tax which can be tied to behaviors the Fed wants to discourage... i.e., a cig tax, an alcohol tax...

    But that's not what this is -- it's a tax on NOT DOING SOMETHING.

    That's an entirely different kettle of fish.

  11. markm:

    More than that: It is a direct tax. It is not an income tax (it could have been implemented as an income tax increase offset by a tax credit, but Congress chose not to). It is not apportioned among the states by population. So it is an unconstitutional tax.

  12. markm:

    As for "internal consistency", the decision on the individual mandate isn't really 5-4, it's 1-4-4. Only Roberts hung his decision on the tax question, and he seems to have adopted that position at the last minute, without thinking the implications through. You can't get a consistent decision when the majority is split.

  13. Patrick:

    At what point in this "taxing issue" do I say that I've had enough tax today?
    I think it is reasonable to assess the "unintended consequences" from such far reaching legislation .... which I am sure has been done by the same economists which saw all the bubbles being created in the various sectors which had been pumped up for years? My guess is that a segment of society already taxed at a level which leaves little on the table will give up the ghost. How many businesses do you think will switch their models to far less "human capital" models using "out-sourcing"? What does this do to "relatively cheap" human capital being used by companies using more than 50 employees? I see costs of goods rising across the board, as this mandate takes full effect. What happens to the unions and their membership who is idle for alot of the time? I see this mandate as a legal quagmire which will result in job stagnation in the private sector.