Did the 'Individual Mandate' Survive?

In the aftermath of the Supreme Court's June 28 decision on ObamaCare, there've been some confusing reports in the media that the "individual mandate" survived:

On July 12 in an excerpt from a soon-to-appear article in National Review, attorneys Jonathan Adler and Nathaniel Stewart write: "The post-New Deal remnants of our original constitutional order were very much at stake in this case, and although the mandate survived, at least for today those remnants still remain."

In an article for The Daily Caller on July 11, Jim Huffman of Lewis & Clark Law School writes: "In joining the court's four liberals to uphold the constitutionality of Obamacare's individual mandate ..."

Virginia Attorney General Ken Cuccinelli (who brought Virginia v. Sebelius) writes: "My initial reaction when the decision was announced that the insurance mandate was upheld ..."

Business writer for The Kansas City Star Keith Chrostowski writes: "So the mandate and the act stand. Roberts seemed to think that recasting the individual mandate as merely a tax would make it more acceptable to Americans who don't like being told outright what to do."

And Jonah Goldberg weighs in (italics added) at NRO:

In the majority opinion written by Roberts, the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (Obamacare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that it's constitutional under Congress's power to tax.

Since the decision, one also hears reports on cable TV news channels that "the mandate is a tax." But are these reports correct? Was the mandate upheld? Chief Justice Roberts examines the tax argument between PDF-pages 37 and 51 of the decision. On page 37, Roberts writes:

Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government's second argument: that the mandate may be upheld as within Congress's enumerated power to "lay and collect Taxes." ... Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

Roberts could be held responsible for some of our confusion. He would have been clearer had he substituted the above two iterations of "the mandate" with "the Act." But in the final paragraph (page 50-51) on the tax argument, Roberts becomes much clearer:

The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

Roberts removes all doubts that the mandate has been struck down in his summation on page 64:

The Affordable Care Act is constitutional in part and unconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress's power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress's power to tax.

It's unambiguous: Roberts gives us a choice, not a mandate.

In the bill that passed, the individual mandate was to "maintain minimum essential coverage." That is, the mandate commanded us to own health insurance. The mandate wasn't to pay a tax or a penalty or whatever one must call it to make the act constitutional.

It was the Commerce Clause that Congress used to justify the individual mandate. Start reading the Affordable Care Act  on page 143 (PDF-page 162) and see how the effect of the uninsured on commerce was woven into the justification for the individual mandate. Long before the bill was signed into law, conservatives argued that the individual mandate is unconstitutional under the Commerce Clause. Conservatives have now won that argument. So let's not snatch defeat out of the jaws of victory by declaring that the mandate survived.

Unfortunately, ObamaCare survived, and it "works" just as it did -- if you choose to go without health insurance, your income tax bill rises. Instead of a mandate, we now have a tax, which has been dubbed "ObamaTax" (terrific video). We've cut off one head of the Hydra only to have another head sprout up: Congress cannot command us to own broccoli, but Congress can tax us for not owning broccoli. What else can Congress tax us on for not owning?

Although the jury is still out on whether it was the right thing to do, the Chief Justice had to bend over backwards and "rewrite" ObamaCare in order to save it. That's a black eye for those in the Pelosi-Reid Congress who voted for the bill --- a bill found unconstitutional on two counts: the expansion of Medicaid and the individual mandate.

The five articles I quote from at the top are all worth reading. But it is clear to this individual that the individual mandate did not survive under any clause in the Constitution. That's a clear victory for fans of limited government, so let's quit saying the mandate survived.

Jon N. Hall is a programmer/analyst from Kansas City.

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