The View From LL2

When I learned recently that the Department of Justice is arguing that the individual mandate falls within Congress’ tax power, I had to chuckle.  You see, a while back I wrote my one and only post on the healthcare debate, in which I argued that the individual mandate was, in fact, a tax.  Of course, Obama disputed that very point in an interview with ABC.

Mr. Stephanopoulos posed the obvious question about this kind of coercion when “the government is forcing people to spend money, fining you if you don’t [buy insurance]. . . . How is that not a tax?”

“Well, hold on a second, George,” Mr. Obama replied. “Here’s what’s happening. You and I are both paying $900, on average—our families—in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances.  And then you get hit by a bus and you and I have to pay for the emergency room care, that’s . . .”

But I guess he’s changed his mind.  Perhaps he reads our blog.

I understand, of course, that Obama’s words don’t forever bind the government.  There’s no estoppel against the government, and DOJ has the right to assert whatever non-frivolous defense of  statute it wants.  Still, doesn’t this seem kinda . . . screwy?

-Michael

Update: Over at Balkinization, Jack Balkin explains why the government’s tax argument is not a concession that the Commerce Clause argument is weak.  I note this primarily because the post is an epic takedown of the often-annoying Randy Barnett (of the Volokh Conspirary).