The Constitutionality of the Individual Mandate

13 December 2010, 1834 EST

Perhaps because I am not a lawyer, I found the section of Judge Hudson’s ruling dealing with taxation powers difficult to make sense of. Hudson argues that Congress did not intend to use its taxation powers, because (1) it removed the word “tax” from many points in the document and (2) it invoked commerce-clause powers in its preface to Section 1501.

I don’t entirely understand how this is relevant to the constitutionality of the “mandate.” If the act requires that individuals pay a penalty on their income-tax returns for failure to purchase health insurance, then isn’t the question simply whether this is within the scope of its power or not?

Even here the reasoning seems strained, insofar as the quoted text itself reads “[T]here is hereby imposed on the taxpayer a penalty….” The question of the political resonance of “tax” versus “penalty” does not, in my mind, justify a “logical inference” that the penalty is not a tax penalty.

What really gives the game away, though, is Hudson’s footnote 13 (see page 36).

There is, of course, no logical or functional difference between giving someone a tax break for purchasing a product and slapping tax penalty on someone else for not purchasing that product.

My mortgage-interest deduction is someone else’s renting (or cash-only home purchase) penalty.
My graduate-loan interest deduction is someone else’s couldn’t-afford (or could-easily-afford, or got-a-full-scholarship) graduate school penalty.

And let’s not even get started on the not-have-a-kid penalty, or what everyone actually calls the “marriage penalty.” If I recall correctly, conservatives have been the most vocal about this last “penalty,” which involves–among other inadvertent effects of the tax code–a married couple’s inability to take advantage of certain deductions available to singles.

Hudson’s opinion rests on the confusion of a political slogan with a legal argument. The ritualistic invocation of the idea that HCR is unique because it “requires individuals to buy a product” does not render it logically–or, if you’ll allow me the temerity to say so, legally compelling.

Dan Nexon

Daniel H. Nexon is a Professor at Georgetown University, with a joint appointment in the Department of Government and the School of Foreign Service. His academic work focuses on international-relations theory, power politics, empires and hegemony, and international order. He has also written on the relationship between popular culture and world politics.

He has held fellowships at Stanford University's Center for International Security and Cooperation and at the Ohio State University's Mershon Center for International Studies. During 2009-2010 he worked in the U.S. Department of Defense as a Council on Foreign Relations International Affairs Fellow. He was the lead editor of International Studies Quarterly from 2014-2018.

He is the author of The Struggle for Power in Early Modern Europe: Religious Conflict, Dynastic Empires, and International Change (Princeton University Press, 2009), which won the International Security Studies Section (ISSS) Best Book Award for 2010, and co-author of Exit from Hegemony: The Unraveling of the American Global Order (Oxford University Press, 2020). His articles have appeared in a lot of places. He is the founder of the The Duck of Minerva, and also blogs at Lawyers, Guns and Money.