The Supreme Court decision upholding the health-insurance mandate in the Patient Protection and Affordable Care Act (ObamaCare) has an Alice-in-Wonderland feel to it. As Lewis Carroll wrote in Through the Looking Glass,

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

Chief Justice John Roberts’s opinion holds that the penalty for not complying with the mandate is both a tax and not a tax — depending on the question. If the question is whether someone may sue to strike down the mandate, the court says yes, because the penalty is not a tax. Under the Tax Anti-Injunction Act (first passed in 1867 but since updated), one may not ask for an injunction against a tax before it has been enforced. One must wait to be taxed, request a refund from the IRS, and if turned down, then sue the government. In the ObamaCare case, the Court denied such an attempt to have the challenge dismissed by declaring the penalty not a tax.

But only for purposes of the Tax Anti-Injunction Act. It was another story when the question was whether the mandate is constitutional.

The government made two arguments in defense of its mandate. The primary argument was that Congress may require the purchase of insurance under the Commerce Clause. This clause, which empowers Congress “To regulate commerce … among the several States,” has long been interpreted to include even activities that merely affect interstate commerce. Roberts and four other members of the court (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) did not buy this argument. “The Framers gave Congress the power to regulate commerce, not to compel it,” Roberts wrote. He rebutted in great detail the Obama administration’s many arguments that penalizing people for not buying insurance was a way to regulate interstate commerce.

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Sheldon Richman (photo)