The Obamacare Mandate Is Not a Tax

By now anyone who is not residing in an unelectrified cabin in the mountains of Montana knows about the firestorm of controversy created by the June 30, 2012 SCOTUS ruling on Obamacare.  What is less obvious is the confusion the ruling has left in its wake.  Most of this confusion has to do with indiscriminate labels bouncing off the walls of public discourse.

Here's a shortlist of quotes from media sources that highlight the mandate/tax confusion:

  • "The surprise resolution of our national healthcare drama - the mandate is a tax! - has a kernel of solace for Republican partisans saddened by the constitutionality of Obamacare: The mandate is a tax!"
  • "Individual mandate upheld as tax."
  • "Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds -- interpreting the individual mandate as merely a tax, something generally within the power of Congress."
  • "There's been a big dust-up in the media this week as to whether or not Republicans agree with Supreme Court Chief Justice John Roberts that Obamacare's individual mandate is a tax."

Democrat leftists, although at first they seemed confounded in some ways by the ruling, stand to be the winners if such confusion is allowed to persist; it is they, after all, who continually seek to "cause confusion, fear and retreat" (Alinsky Rule #3) among their enemies.  If conservatives are to have any hope of prevailing, we cannot accomplish this by straining the murky label soup and trying to make sense of the solids.  We must dump the whole pot down the drain and begin speaking anew with a clear voice and careful distinctions.

So, I'm not going to re-label mislabels.   Instead, I recommend that readers bypass all the labels and ctrl-click this link, §5000A, to open it in a separate browser tab.  This will display the parts of the U. S. Code that are pertinent to the ObamaCare ruling in full taxonomic context, which will help to avoid verbal clutter and, hopefully, make what follows a little clearer.  Think of this link as a thumb on a reference page.  When you run across, for example, "§5000A(b)," a quick look at the new tab will tell you exactly what this represents: the "Shared responsibility payment"; §5000A(b)(1) shows how §5000A(b) is intended to work.

Here are two core points pertaining to the SCOTUS ruling regarding ObamaCare and taxation:

  • The Government argued before the court, both in the Certiorari Brief and in the oral arguments, that §5000A(b) is variously a "penalty," a "tax penalty" and even a "penalty that operates as a tax" -- but it is not, according to the Government, a tax. The Government also argued that "Congress's taxing power provides independent authority for the enactment of the minimum coverage provision" -- i.e., §5000A in its entirety (Certiorari, p26).
  • The ruling of the Court carried a different message. The Court argued first, that §5000A(b) and that subsection only, by itself, can be deemed a tax "for constitutional purposes" (Court, p35) and, second, that the command power of §5000A(a), as well as the commerce-clause issue linked to it, is therefore nullified: "...the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income" (Court, p32). §5000A(a) and §5000A(b), in other words, are merely alternative choices for the citizen.

Both the Court and the Government appear, when using the word "tax," to be pointing specifically to §5000A(b): the Court says "tax"; the Government says "tax penalty" or "penalty that operates as a tax."  But what about the labels "mandate" or "the individual mandate"?  A page search of §5000A yields no results for the word "mandate," so we are left to rely on legislative, judicial and public-discourse uses of that label.  All these usages taken together point to either §5000A or, alternatively, §5000A(a) by itself: §5000A is the title of the mandate section and §5000A(a) is the subsection, with the same title, that defines what the code putatively mandates.  §5000A(b) and everything else that follows detail the consequences of non-compliance with 5000A(a).

So, the Code candidates for the label "mandate" are only §5000A and §5000A(a).  Of these two candidates, §5000A(a) cannot be a tax and a mandate at the same time, which would violate the law of non-contradiction; for that reason, §5000A cannot be a tax either inasmuch as it subsumes §5000A(a).  Ergo: the mandate is not a tax.

If our people are going to link "ObamaCare" and "tax," they should at least be pointing specifically to §5000A(b), as the Court argued.  That's the only way we can successfully gobsmack ignorant leftists who just keep mindlessly muttering, "Not a tax, not a tax," when we are insisting that they respond to the tax-ness of §5000A(b), not §5000A(a) or§5000A.

The most distressing instance of mislabeling has appeared in the confounded floundering of the Romney campaign.  Given the universal first-impression surprise, shock and horror at the SCOTUS ruling, Mitt Romney should have immediately assembled a top-notch special legal advisory group to make sense of it -- and ordered staff members, especially gaffer-in-chief Eric Fehrnstrom, to shut up until the campaign had a thoroughly vetted response to announce.  Instead we heard Romney saying two days after the Fehrnstrom gaffe, "[I]t's now clear that [the ObamaCare] mandate, as described by the Supreme Court, is a tax."

It is now well known that ObamaCare is littered with a plethora of taxes, unambiguously labeled as such.  If the Republicans can pull off a Romney victory and a 51-vote Senate majority in November, these taxes could all be exterminated under Senate reconciliation procedures, creating what would amount to a de facto repeal of ObamaCare.  (A de jure repeal would require a filibuster-proof majority post November, very unlikely.)

Now thanks to the SCOTUS ruling, we can toss §5000A(b) into the taxes-to-kill basket -- if Senators and their staffers can just get their minds straight on how to correctly identify the tax.  §5000A(b) is now the big enchilada of ObamaCare taxes.  Don't believe the Obamachiks who are telling everybody things such as "[j]ust over 7 million people [a mere 2% of the U. S. population] would be subject to the minimum coverage provision" and required to pay up.  The truth is, businesses in droves will be shuttering employee health coverage plans and hustling their employees off to §5000A(b) because of built-in ObamaCare incentives to do so.  §5000A(b) will be overwhelmed.

Whether you see the Roberts SCOTUS ObamaCare ruling as a blue sky (as I do) or as a black cloud with a pale and wan silver lining (as the overwhelming majority of conservatives obviously do), surely we can all agree that the battle against this legislative monstrosity is far from lost.  We will not likely gain enough new power after November to kill the thing in one fell swoop, but we put up a clear-headed fight we stand a good chance of ending up with enough political resources to starve it to death.

Paul Jacobson is a freelance writer on political/cultural topics.  He blogs at