The White House has apparently come clean about something critics of ObamaCare reported weeks ago. Last Friday the NYT reported that the WH is going to attempt to defend its authority to implement ObamaCare against the various lawsuits filed against it by arguing that it falls within the federal government’s power to tax. There’s a couple of problems with that, as Ed Morrissey over at Hot Air has pointed out. First, he notes that the issue was already covered 3 months ago when Randy Barnett wrote in the Wall Street Journal:
This switch in constitutional theories is a tell: Defenders of the bill lack confidence in their commerce power theory. The switch also comes too late. When the mandate’s constitutionality comes up for review as part of the state attorneys general lawsuit, the Supreme Court will not consider the penalty enforcing the mandate to be a tax because, in the provision that actually defines and imposes the mandate and penalty, Congress did not call it a tax and did not treat it as a tax.
This shift won’t work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.
In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”
It might also be somewhat difficult to press the case that ObamaCare is a tax considering the plethora of examples of Democratic leadership from Congress to the White House vehemently insisting that this isn’t a tax. Have a look at the link to Morrissey’s post for video examples of those events, most famously the interview of Obama by George Stephanopoulos where Obama gets downright testy about the dictionary definition of “tax.”
The federal government lacks the Constitutional authority to do any such thing remotely like ObamaCare and that fact is becoming very clear to this administration, hence the change-up in justification strategy. Should be interesting.