Taxing Power

  • July 3, 2012

    by John Schachter

    When my son was maybe six years old, he learned an important life lesson: when you start an apology with the words, “I’m not really sorry,” it doesn’t count as an apology. Unfortunately, in his almost 63 years, Bill O’Reilly has yet to grasp that valuable rule.

    In late March, when the U.S. Supreme Court was hearing oral arguments on the constitutionality of the Affordable Care Act, O’Reilly had ACS President Caroline Fredrickson on his show to “discuss” the issue. Much of the so-called discussion consisted of O’Reilly condescendingly lecturing Fredrickson with faulty analysis, but she was able to calmly explain how the taxing power could very well support the law’s constitutionality.

    O’Reilly staked his ground (and reputation) quite clearly when he said, “Ms. Fredrickson, you are going to lose and your arguments are specious … and it's going to be 5 to 4. And if I'm wrong, I will come on, and I will play your clip, and I will apologize for being an idiot.”

    When he returned to his show from vacation four days after the high court’s ruling, O’Reilly addressed the issue, which mainstream and social media representatives had been highlighting for days.

    I’m not really sorry,” he opened.

    “But I am a man of my word,” O’Reilly continued, showing no apparent recognition of the irony. “So I apologize for not factoring in the John Roberts situation. Truthfully, I never in a million years would thought the chief justice would go beyond the scope of the commerce clause to date and into taxation. I may be an idiot for not considering that.”

    (Childhood translation: “Billy, tell your sister you’re sorry.” “OK. I’m sorry … that she’s such a jerk.”)

  • March 19, 2012

    by Jeremy Leaming

    If the Supreme Court’s conservative wing finds a way to ignore precedent and sticks together to strike the integral provision of the Obama administration’s landmark health care reform law, it will egregiously misread the Constitution, write Akhil Amar and Todd Brewster for Constitution Daily.

    The two provide reasons why striking the law's minimum coverage provision would represent such a flawed interpretation of the Constitution, which have been reiterated on this blog numerous times. And Amar has authored other articles and spoken often of the Patient Protection and Affordable Care Act and how its minimum coverage provision is constitutional. As noted by ACSblog last week, the majority of experts on the health care law believe the Supreme Court’s right-wing will not carry the day, and the law will be upheld.

    Amar and Brewster tackle two of the main arguments against the law’s minimum coverage provision, which staring in 2014 requires Americans who can afford to do so to purchase health care coverage or pay a penalty when filing their income tax returns. As Amar and Brewster note the opponents of the Affordable Care Act have attempted to make the argument that Congress with its passage of the law has taken major swipe at liberty – that is by allegedly forcing people into the health care insurance market.

    But Amar and Brewster, in accessible form, explain why the liberty argument fails – mainly because the Constitution provides Congress the powers to tax and spend, and regulate interstate commerce. The Supreme Court, moreover, has since the late 1930s, interpreted those powers to be broad ones.

  • April 18, 2011

    The individual responsibility provision of the Affordable Care Act (ACA), much-attacked by Tea Party radicals as an outrageous overreach by the federal government, is well within Congress’s taxing power, states a recently filed amicus brief in Florida v. HHS.

    In a friend-of-the-court brief filed with the U.S. Court of Appeals for the Eleventh Circuit, attorneys for SEIU and Change to Win focus on the constitutional authority of Congress to enact taxes. The individual responsibility provision, which requires some people to purchase a certain amount of health care coverage starting in 2014, works as a “tax on income” that “falls squarely within Congress’ ‘complete and all-embracing taxing power,’” the attorneys state.  

    While many constitutional law experts, and other amicus briefs, argue that Congress’s power to regulate commerce is the constitutional underpinning for the ACA’s individual responsibility provision, the SEIU-Change to Win amicus brief says congressional taxing power sufficiently supports the law’s constitutionality, and that it does not matter what form the tax takes.

    “It is constitutionally irrelevant that Congress did not name the assessment a ‘tax’ or otherwise expressly invoke its taxing authority in” the text of the ACA, the brief states. “Courts have repeatedly ruled that whether an enactment is valid exercise of Congress’ constitutional powers rests on its substance, not its name.”

    In January, U.S. District Judge Roger Vinson ruled in favor of the Florida Attorney General’s challenge to the health care reform law, saying the individual responsibility provision was beyond the power of Congress to enact, and therefore the entire law must be invalidated. Vinson’s opinion sparked rebukes from many national constitutional law experts. Yale Law School Professor  Akhil Reed Amar said after reading Judge Vinson’s ruing he concluded that his students “understand the Constitution better than the judge.”

    The SEIU-Change to Win amicus brief argues that Judge Vinson relied, in part, on Supreme Court precedent that has long been discarded. “Congress has ample authority under its taxing power to assess a tax on the income of those who decline to purchase health insurance,” the brief states. “It is for elected legislators – not judges – to evaluate the wisdom of such an income tax.”

    The brief also notes that the revenue mechanism of the ACA is not far removed from those of other landmark social reform legislation that the Supreme Court has addressed.

    The brief states:

    From a constitutional perspective, the tax imposed by the minimum coverage provision is no different from the unemployment and old age insurance system Congress established through the Social Security Act. The constitutional propriety of that exercise of Congress’ taxation power is beyond dispute; there is no basis to treat this income tax any differently.

    Click here to read the groups’ entire amicus brief.

    Legal scholars have argued that the ACA’s individual responsibility provision is also constitutional under Congress’s power to regulate commerce.

    In an amicus brief filed earlier this month in the Eleventh Circuit on behalf of Yale Law School Professor Jack M. Balkin and Columbia Law School Professors Gillian E. Metzger and Trevor W. Morrison, attorneys also argued the constitutionality of the ACA pursuant to Congress’s power to regulate commerce and its taxing power.

    The professors’ amicus brief states:

    Congress’s taxing power is exceedingly broad. The Supreme Court has repeatedly reaffirmed the taxing power’s reach and has consistently held that a tax is valid so long as it serves the general welfare, is reasonably related to revenue raising, and does not violate any independent constitutional prohibition. The Court has also repeatedly affirmed that the taxing power is not limited to subjects within Congress’s other enumerated powers and that a tax is not invalid simply because it has a regulatory purpose or effect. The Minimum Coverage Fee Provision plainly satisfies the standard for legitimate exercises of the taxing power.

    The professors’ brief is available here.  

    For resources and new developments in all the legal challenges to the ACA, see ACS’s “The Affordable Care Act Resource Page: Tracking Legal Challenges & Other Attacks on the Health Care Reform Law.”