On Whether The Individal Mandate Is A Tax

Austin Frakt points to this post by Jim Hufford who argues that conservatives misunderstood Robert Pear’s big health care article on Sunday. Pear may have added fuel to the repeal movement by noting that while the President had insisted that the new individual mandate was not a tax in September, his Justice Department was now defending the law in court and describing it as just that. But Hufford says that this is actually a bad thing for repeal advocates:

[Even if] the commerce clause argument gives the mandate’s challengers a leg to stand on, the taxing and spending clause does not. Congress’s power of taxation is limited only by the requirement that any tax laid be conducive to the general welfare; and Congress decides whether a tax is conducive the general welfare. […]

The article makes it sound like the administration has the upper hand on the taxing clause (a.k.a., the “general welfare clause”) argument, but the challengers are still in the fight and coming out swinging with their commerce clause argument. But it’s not really like that. Because you can’t answer a general welfare clause argument with a commerce clause argument. And if the government wins on either issue, the fight is over.

Ok, fair enough, but I also don’t think that conservatives have a very convincing argument with the “gocha” on taxes point. What Obama told George Stephanopoulos in September is still true today. The individual mandate — originally a Republican idea — is designed to get everyone to take responsibility for their own health and eliminate the cost shifts that occur when individuals receive uncompensated care. “What it’s saying is, is that we’re not going to have other people carrying your burdens for you any more than the fact that right now everybody in America, just about, has to get auto insurance,” Obama said at the time. “Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that, if you hit my car, that I’m not covering all the costs.”

The mandate is not a “tax” in the sense that its primary purpose is to raise revenue even though it meets the legal definition, which is somewhat different than the popular understanding of that term. As Ian Millhiser tells me, conservatives obviously think “that they have caught Obama in some grand contradiction because he uses one meaning of the word ‘tax’ in one context and his lawyers use another meaning of that term in a legal brief, but the word ‘tax’ has an unusually broad meaning in the constitutional context — it can include nearly any provision that adds money to the federal treasury.”