Chief Justice Roberts was entirely correct in holding that the Affordable Care Act's individual mandate could be sustained as a tax.
Today’s Supreme Court decision isn’t just a victory for Obama and his health plan: It’s a triumph of substance over formalism. The challengers’ argument all along rested on a curious claim that linguistics should trump reality. They treated the mandate as a fundamental change in Congressional power, but conceded that precisely the same financial effects could have been imposed if the mandate had been called a tax.
Ever since the United States Supreme Court heard arguments about Obamacare’s constitutionality in late March, speculation has been rife that the Justices will strike down the individual mandate. The predictions rest on a single assertion: That individuals have never before been required, under the authority of the Commerce Clause, to purchase a product or service from a private party. In other words, that there is no precedent for a “purchase mandate.” The assertion is inaccurate.
Since I wrote last week about the remarkable eighteenth-century precedents for a health insurance mandate, several supporters of the challenge to Obamacare have attempted to downplay the relevance of those early mandates for today’s case.
Last week, I wrote an article describing several purchase mandates adopted by the framers in early Congresses, including two medical insurance mandates imposed on shipowners and seamen. These examples rebut the claim by challengers to Obamacare that purchase mandates are wholly unprecedented in a way that allows us to infer they are unconstitutional, a claim on which they rely heavily because there is no text, history, or case law that affirmatively supports a ban on purchase mandates. Not everyone agrees with me.
In making the legal case against Obamacare’s individual mandate, challengers have argued that the framers of our Constitution would certainly have found such a measure to be unconstitutional. Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases. The framers, challengers have claimed, thought a constitutional ban on purchase mandates was too “obvious” to mention.