No taxation with misrepresentation
Kessler upheld the statute's individual mandate as a constitutionally proper exercise of Congress's power to regulate interstate commerce, basically adopting a better-written version of arguments that other judges and journalists have already made: Health care is a national market; Congress can regulate it in such a way as to provide for universal coverage; individuals can't "free-ride" off the system.
Yet, in a very important sense, Kessler's opinion was also a victory for the law's opponents. She rejected, in no uncertain terms, the Obama administration's alternative argument: The individual mandate is constitutional as an exercise of Congress's power to tax the citizenry and spend the funds for the "general welfare." As you'll recall, more than a few pundits and law professors have supported this claim, arguing that the law's monetary "penalty" for non-compliance with the mandate is obviously the functional equivalent of a tax, and so, as any idiot can see, it does not matter that Congress went out of its way not to call it a tax.
Kessler flatly rejected this contention. Congress plainly did not intend the penalty "as a revenue-raising tax, but rather as a punitive measure" designed to enforce a regulatory program, she wrote. In so doing, Kessler -- a lifelong Democrat appointed to the bench by President Bill Clinton in 1994 -- adopted with warm approval the analysis of Judge Roger Vinson, the supposedly second-rate Republican hack who struck down the individual mandate in a Florida court just weeks ago.
Indeed, as Kessler noted, every district judge to consider this point before her, whether appointed by a Republican president or a Democrat, has sided with the law's opponents: Her opinion makes the score 6-0. (This includes a Pennsylvania judge who has not yet decided on the law as a whole, but rejected the tax argument in a preliminary ruling.)
At this point, it's unanimous: Congress cannot invoke its taxation authority or disavow it according to political convenience. If it wants to levy taxes it must be open and honest about it. This is not a mere matter of semantics; it's a basic safeguard against deceptive legislation. No taxation with misrepresentation, you might say.
Or, to put it another way, when Congress deliberately removes the word "tax" from a statute and replaces it with a different word with a different legal and policy meaning, that's a clear legislative choice to which the courts must defer. Penciling "tax" back in later on would be a feat of judicial activism that neither Kessler nor any other judge of either party (so far) has been willing to perform.
More and more, this case looks like boiling down to the one essential - and novel - constitutional question on which the courts have divided: Whether the individual mandate is a constitutional exercise of Congress's power to regulate interstate commerce. More thoughts on that in a later post.
| February 28, 2011; 1:53 PM ET
Categories: Lane | Tags: Charles Lane
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