In Which George Will Hopes For — And Believes In — Tooth Fairies

In this morning’s Washington Post — which I am reading locally here inside the Beltway — George F. Will takes a Missouri-based libertarian law professor’s op ed, and recasts it as some goofy form of authoritative legal analysis. Mr. Will thinks that if Congress were to increase the level of taxation in the mandate’s incentive, the ACA of 2010, as amended, would fail to pass muster. Not so. Not even remotely so. [See my backgrounder here — with actual legal analysis.]

The problem with Mr. Will’s is actually his crediting as plausible the Missouri professor’s views — without noticing that the Missouri professor cites no actual cases to support his claims. And that is understandable, as these same Cato Institute funded arguments (and briefed by amici colleagues of that professor) were soundly rejected last term, when Justice Roberts voted with the other four to unsurprisingly uphold Congress’s power to tax.

The Justices also broadly hinted that even very high taxes — on lawful activities — will survive Supreme Court scrutiny, in a case decided four days before the ACA case (think about the level of taxation on liquor and cigarettes, for example — each laid on lawful activities, and long held constitutional).

. . . .[A]mong the enumerated powers of Government. . . we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government.

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. . . .

— McCulloch v. Maryland. . . .

All that need be shown, then, is that the tax is rationally related to a legitimate end Congress is seeking. Even a tax that well-exceeds the cost of paying for insurance would thus very likely survive. Think cigarettes here. So endeth the lesson.

Mr. Will ought to forget about his Mizzou tooth fairies. UPDATED: A private — but very helpful — e-mailer suggests that I’ve used far too much shorthand, here. Fair enough. Let me elaborate.

Mr. Will (and his Missouri inspiration) labor under the misconception that in order for any federal tax to be sustained as constitutional, it must be small. [Of course, that would be a libertarian’s opening prejudice.] Not so, in actuality — all a true tax need do (under actual Supreme Court precedents) is have an objective of raising revenue. This tax, in the ACA of 2010, does just that, and is graduated by individual income. Res Ipsa.

Moreover, as Justice Roberts explicitly wrote — at pages 36 to 37 of his 5 vote-attracting opinion:

. . . .Today, federal and state taxes can compose more than half the retail price of cigarettes not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns. See United States v. Sanchez, 340 U. S. 42, 44– 45 (1950); Sonzinsky v. United States, 300 U. S. 506, 513 (1937). Indeed, “[e]very tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. . . .” That §5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.

In distinguishing penalties from taxes, this Court has explained that “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996); see also United States v. La Franca, 282 U. S. 568, 572 (1931) (“[A] penalty, as the word is here used, is an exaction imposed by statute aspunishment for an unlawful act”). While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. . . .

So — there you have it. Libertarians in Mizzou, and tooth fairies unite — and Geoge Will quotes them — as actual law. They aren’t. The above, on the other hand, is. Again, res ipsa.


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