Sen. Orrin Hatch and two lawyer friends of his take to the op-ed page of the Wall Street Journal to tell us that the requirement to purchase insurance in the health care bill is unconstitutional:
President Obama’s health-care bill is now moving toward final passage. The policy issues may be coming to an end, but the legal issues are certain to continue because key provisions of this dangerous legislation are unconstitutional. Legally speaking, this legislation creates a target-rich environment. We will focus on three of its more glaring constitutional defects.
First, the Constitution does not give Congress the power to require that Americans purchase health insurance. Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes. None of those powers justifies the individual insurance mandate. Congress’s powers to tax and spend do not apply because the mandate neither taxes nor spends. The only other option is Congress’s power to regulate interstate commerce.
Jack Balkin, also a lawyer, and one who knows how to read legislation, replies that the individual mandate does, too, tax and spend:
The House bill is a tax on adjusted gross income. You pay the tax if you don’t purchase health insurance. Put another way, if you don’t want to buy health insurance you can just pay the tax.
The Senate bill is a penalty tax. If you don’t want to purchase health insurance, you pay the tax. The penalty is assessed for as long as you don’t buy insurance. Such taxes are quite common– think, for example, about the penalties imposed for failing to pay your income tax on time, or a tax on polluters who fail to purchase and install anti-pollution equipment. The Senate bill can also be classified as an excise tax on an event– failure to pay premiums in a given month.
Congress’s powers to impose an income tax, a penalty tax, or an excise tax are unproblematic. The House and Senate versions of the individual mandate are clearly within Congress’s powers to tax and spend for the general welfare. Nor are they direct taxes that must be apportioned by state. Under the 16th Amendment taxes on income need not be apportioned no matter what the source of the income; excise and penalty taxes are not taxes on real estate and they are not capitation or “head” taxes, taxes that are levied on the population no matter what they do. Therefore they are not direct taxes within the meaning of the Constitution and existing precedents.
Either the House or the Senate version of the tax is clearly constitutional under existing law. It is not even a close question.
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