Surprising Pundits, DOJ Brief Defends Health Care Law Under Tax Power
In anticipation of a constitutional challenge, Congress included findings with the new health care law intended to show it is a regulation of commerce. The taxation power isn’t mentioned.
Indeed President Obama himself dismissed the idea that the new law is essentially a tax, the New York Times reports. “I absolutely reject that notion,” he said in an interview last September with ABC News.
But the Obama administration is taking the taxation tack in its defense of the law, which requires Americans to carry health insurance or pay a penalty, the Times says. Briefs filed by the Justice Department defend the law as part of the government’s power to “lay and collect taxes.”
The tax argument has surprised constitutional experts writing at Cato@Liberty and the Volokh Conspiracy. “Maybe the administration lawyers confronted the inconvenient fact that the commerce clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a ‘penalty’ enforced by the IRS,” says Georgetown University law professor Randy Barnett, writing on the Volokh blog.
White House communications director Dan Pfeiffer told the Times that Congress had the authority to pass the law under the commerce clause, but the taxing power is an alternative source of authority.
More than 20 states are challenging the law.
Prior coverage:
ABAJournal.com: “ ‘Smart Money’ Says Supreme Court Won’t Thwart Health Care Bill, Law Prof Says”
ABAJournal.com: “Is the Health Care Bill Unconstitutional?”
