During the debate over ObamaCare many raised Constitutional concerns over the individual mandate. Most supporters of the bill said the Feds had the authority under the now-infinitely elastic Interstate Commerce Clause. (Thank you Supreme Court for Wickard v Filburn!) Now that solid arguments are being raised in legal proceedings against that view, they're switching their tunes to calling it a tax.
Surprising only Joe Biden, the Administration now says,
“The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law,” Mr. Pfeiffer [WH Communications Director] said. “To the extent that there is any question of additional authority — and we don’t believe there is — it would be available through the General Welfare Clause.”Piling irony on irony, a progressive legal organization that calls itself the American Constitution Society, responds:
The law describes the levy on the uninsured as a “penalty” rather than a tax. The Justice Department brushes aside the distinction, saying “the statutory label” does not matter. The constitutionality of a tax law depends on “its practical operation,” not the precise form of words used to describe it, the department says, citing a long line of Supreme Court cases."
Mr. Obama “has not been honest with the American people about the nature of this bill,” Mr. Balkin said last month at a meeting of the American Constitution Society, a progressive legal organization. “This bill is a tax. Because it’s a tax, it’s completely constitutional.Actually, even that argument is mistaken. The Federal government (apart from the explicitly authorized Income Tax, via the 16th Amendment) has no constitutional authority to tax for actions involving non-enumerated powers.
Says who? Well, James Madison, for one. (I figure he ought to know.) Madison said,
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper.[He was objecting to a bill proposing the Federal Government fund the building of roads and canals, but the principle is valid in this other context.]
Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.
Given a disagreement between two Constitutional scholars — James Madison and Barack Obama — I think I'm going to have to side with James.