How Does a Mandate Become a Tax?

We’ve been instructed to be deliberate in the communication of our ideas; be clear, concise, and say what you mean without newfangled, colorful language. I’d been given this lesson consistently during the course of my education. But words don’t appear to have very much meaning in the legal world–and they probably have very little meaning in the world beyond that. For the legal world, the more you communicate the better you’re able to cover your ass when something inevitably goes wrong, even if that language is designed to confuse the average person.

Since the ruling last week [concerning the PPACA1] I’ve been utterly perplexed by the result as far as the constitutionality of the mandate is concerned. According to my layman’s understanding, the mandate to purchase insurance goes too far in relation to the commerce clause,2 and thus is not constitutional under that reading; however, according to Chief Justice Roberts if it is read a certain way the mandate is a tax rather than a penalty as specified in the text and so can be considered constitutional under the taxing power.

The mandate was never labeled a tax and that language was particularly derided by the original drafters and supporters of the PPACA, so where does this reading come from? How does something neither labeled nor described as a tax suddenly become a tax for purposes of allowing said provision to stand? The opinion discusses the mechanism of enforcement as one that for all intents and purposes is a tax because it isn’t particularly punitive, so I get the reasoning. But I always assumed that the meaning of the words used in the drafting of the law was just as important as intent, in that both typically coincide with one another. And in this case, the mandate was designed as a mandate to pay for insurance or pay the penalty–unless your income was under a certain threshold.

This is not descriptive of a tax,3 but seems more like a parking violation. And reports of Chief Justice Roberts switching his opinion are enough to make me even more skeptical of this whole process. There is no giant conspiracy, but what is the endgame here?

A constitution of enumerated powers is designed to put limits on those powers, not grant broad authority under an exceedingly broad interpretation of a power that was designed to reduce trade barriers amongst the states. I will never understand the academic desire to make this so. If you’re looking to change the operation of our government, and the balance of power the constitution was designed to create, then amend it.

  1. This is the Patient Protection and Affordable Care Act–the constitutionality of some parts of the act were being deliberated by the Supreme Court. I’m really only going to discuss the mandate, as other portions are a little less controversial.
  2. The commerce clause reads: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” These few words have been used to justify a number of powers that are convenient, but not specified in the constitution, as an effort to regulate interstate commerce. Under the increasingly broad interpretation of the Supreme Court, just about anything can effect interstate commerce, even personally manufactured or grown goods. Go read more about it. This reasoning was thankfully rejected.
  3. “To impose a financial charge or other levy upon a taxpayer (an individual or legal entity) by a state or the functional equivalent of a state such that failure to pay is punishable by law.” <>. Accessed 7/3/2012.