If It Walks Like a Tax…

One of the more troubling aspects of last week’s decision allowing the Florida challenge to health care reform to go forward was the court’s focus on Congress’s intent in determining whether the individual mandate was constitutional under the taxing power. Leaving aside my doubts about the legal correctness of this approach, I was especially perturbed by the court’s argument that the issue turned on statements by Congress and the President characterizing the mandate as imposing a penalty so as to avoid the political consequences of “raising taxes.” Gillian Metzger & Trevor Morrison eloquently sum up the fundamental danger of this approach in their Balkinization post today:

Perhaps the clearest evidence of the mischief invited by the district court’s approach comes in its consideration of political accountability. According to the court, the absence of an express invocation of the tax power in the final version of the legislation is evidence of a deliberate congressional ploy to avoid the political heat for raising taxes. The price for such a maneuver, the court declared, was to take the tax argument off the table in the litigation now before it. But again, although political concerns likely played some role in the Act’s framing, all of the provision’s tax-connected features, plus the fact that the House happily called the provision a tax, weigh substantially against the court’s account of congressional dissembling. And even more fundamentally, the court was simply freelancing when it decided to impose its own views of appropriate political accountability on a coordinate branch.

The court may find congressional pussyfooting around taxation unseemly, but that’s no reason to strike down a substantively valid exercise of the taxing power.

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