Congress Can’t Make You Buy Things, Unless They Tax You If You Don’t

A few hours before the Supreme Court’s decision on the Affordable Care Act, Scott at Expected Optimism speculated that the court might not find the Act constitutional under the Commerce Clause or the Necessary and Proper Clause, but they might under the Tax and Spending Clause. He was right. From page 32 of the court’s decision:

…the Commerce Clause does not give Congress that power…

…the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.  Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income… within Congress’s constitutional power to tax.

Cue lots of conservative wailing about how liberals spent the last three years insisting that the mandate penalty was not a tax, or how it never would have passed if it had been called a “tax” instead of a “penalty.”

I was worried that if Congress had the authority to make you buy health insurance, then it had the authority to make you buy anything else it wanted too. On the one hand, the Supreme Court ruled that “the Commerce Clause does not give Congress that power,” but since the penalty for not buying insurance works like a tax, it’s “just another thing the Government taxes.”

In other words, Congress can’t make you buy things…. unless they tax you if you don’t.

Some limitation that is.

During the hearings, some judges were searching for a limiting principle to Congress’s power to regulate commerce. This decision sounds like there is no limit. If you just tax people for not doing something, you’re allowed to require them to do anything.

It strikes me how unconcerned a lot of liberals seem about such limits. They argued that the mandate was necessary to make this extremely complicated insurance scheme work. That was essentially true (assuming the scheme can actually work), but do they think Congress is made up of smart, talented, uncorrupted lawmakers who will only use this power to pass good, reasonable requirements that are necessary for good, reasonable laws? It’s not hard to think of a scenario where liberals would be singing a different tune – say, a Republican law that required everyone to buy a gun or pay a tax.

Of course, Republicans would never pass a law that invited a national gun registry, but that’s beside the point. Do we really have to break out the old “democracy is two wolves and a sheep voting on what’s for dinner”? Limited democracy guarantees basic rights and protections for individuals that can’t be legislated away, even by a democratic majority. I think one of those rights should be the right to not be forced to buy something, because I don’t trust lawmakers to make good decisions about what they might force me to buy.

There’s also a precedent I don’t like with this “tax.” I don’t think it is like “buying gasoline or earning income.” Those tax laws are about active activity. You buy something, which either causes you to pay a tax or receive a tax deduction. The health care mandate means you pay a tax if you don’t buy something.

Now you could argue that it’s basically the same thing as the mortgage interest deduction. If you don’t buy a house, you pay higher taxes than someone who does. That may be financially equivalent to setting a lower tax rate and giving tax charges to people who don’t buy a house, but I think it’s fundamentally different from the perspective of what government should be allowed to do because of what it implies about other things that government should be allowed to do. But the Supreme Court says they are the same. I’m afraid we have crossed a line.