In NFIB v. Sebelius, five members of the Court held that the Affordable Care Act was unconstitutional if it imposed a mandate to buy insurance, backed by a penalty. But, alas, Chief Justice Roberts said it could only be constitutional if Congress imposed a tax on not buying insurance. That wasn’t the law congress passed, but that is the only way it can be constitutional. Now, we are back in the realm of reality, and saving constructions need not apply. If Congress wants to delay the Affordable Care Act, they should make clear to the American people, for the first time, what is the Obamacare Mandate. Under NFIB, it can only be a tax increase.
Randy Barnett and I have a new op-ed in the USA Today, titled “Dems may have to admit Obamacare tax increase.” Here is the conclusion:
Now, as the price for delaying the implementation of the court-created tax penalty, Republicans should demand truth in labeling. The Democrats in Congress must now admit they have imposed a tax on young and healthy Americans to get them to take the bad deal that is Obamacare. And any suspension of this tax must be scored by the Congressional Budget Office so the public knows the size of the tax increase that will be imposed on the American people when the delay ends and the tax kicks in. No longer will congressional supporters of the ACA be able to evade political responsibility.
On the other hand, if the Democrats insist that the penalty is not a tax, then they will be admitting that it is unconstitutional under the Supreme Court’s decision. If Congress contradicts what the administration told the Supreme Court, a new challenge can be brought under the precedent of NFIB v. Sebelius. The president, and those who supported this law, should now be forced to bear the political consequences of their legislative and litigation legerdemain. If Obamacare can only legally live by the tax, then its supporters in Congress must politically die by the tax.