Talking Points Memo has a great write up on the number of conservative scholars who have concluded that the U.S. Constitution’s interstate commerce clause provides sufficient constitutional authority for Congress to pass the health insurance mandates in the health care reform bill.

In short these conservative constitutional scholars conclude that the United States Supreme Court would have to ignore long-held precedent in order to find that the health care bill is not a constitutional exercise of Congress’ interstate commerce regulation power.? Precedents, including, recent Supreme Court opinions written by Justice Scalia.

But Lawrence O’Donnell on last night’s MSNBC Countdown just mentioned something I’ve been thinking for awhile.? There’s an entirely different constitutional basis to support the so called “mandate” that is legally stronger than even the commerce clause: the power to tax.

The use of Congress’ tax power to advance social policy is considered to be even broader than the power to regulate interstate commerce.? Even during the height of the Anti-New Deal Court jurisprudence (before “the switch in time that saved nine”), the Court recognized the term “general welfare” in Art. I,? Sec. 8, Clause 1 of the U.S. Constitution refers to the legislative power to tax.? See, United States v. Butler (1936), 297 U.S. 1 (Justice Roberts’ majority opinion).

The Court has recognized that even when the amounts raised is so low that it is likely that the measure is not designed to raise revenue, but for solely regulatory purposes, the Congress may constitutionally use its tax power: to regulate (prohibit) gambling (United States v. Kahriger (1953), 345 U.S. 22), regulating (prohibit) narcotics (United States v. Doremus (1919), 249 U.S. 86), regulating firearms (Sonzinsky v. United States (1937), 300 U.S. 506), and even regulating colored margarine (McCray v. United States (1904), 195 U.S. 27.)? Congress’ war on Americans’ margerine rights knows no end.

It’s hard to imagine how any Court could construct a brightline rule that ruled that the health insurance so-called “mandate” is unconstitutional that would not also render Medicare, Medicaid, SCHIP, Social Security, COBRA (the “R” stands for… reconciliation) and the federal unemployment insurance programs are all also unconstitutional.

But, Modern, doesn’t it matter that the insurance “mandate” requires you to buy a product from the private sector? No.

And again, no.

Remember that what is being called a “mandate” exists solely as a tax penalty.? Failure to have qualified health insurance, unless you meet the income exemptions under the statute, results in a $1,000 tax penalty assessed by the IRS.? There’s no criminal violation, nor is there an otherwise civil administrative fine.? You just wind up paying more in taxes.

Whether you phrase it as a tax credit or inversely as a tax penalty, the federal tax code “mandates” private sector economic behavior far more strongly than this health insurance “mandate.”

The federal tax code encourages you to: be a private home owner, drive a hybrid, carry liability insurance as a business, go to college, pay off your federal student loans (even if they’re privately held), private companies to own (rather than lease) the means of production, etc.? In short, anyone who has used TurboTax or otherwise done their own taxes knows that Congress has used the tax power to prohibit or encourage a large number of private economic activity that benefits the private sector.

Every deduction or tax credit you’ve taken is a Congressional “reward” for engaging in entire private sector economic activity that Congress wished to encourage.? Conversely, there are tax penalties that have been upheld when Congress has sought to “punish” or discourage certain private sector economic behavior.

While you can politically make an argument that using the power to tax for “socially engineering” and such a political view may, in fact, be popular, you cannot, however, make a constitutional argument on those grounds.

And Mike DeWine knows that Congress can use the taxing power to further access to health insurance.? After all, he’s been a champion of using Congress’ power to tax to create Medical Savings Accounts.? It’s amazing that not a single reporter pointed that out in covering Mike DeWine’s press release yesterday.

John Kasich and Rob Portman, too, were champions of using the federal tax code as a means of solving the uninsured health care crisis in this nation like DeWine.? (Also, John Kasich’s 1997 Balanced Budget Act?… yeah, it led to the creation of S-CHIP, the federal entitlement program giving health insurance to children.? Wonder if Kasich has ever mentioned that to his Tea Bag buddies.)

And now, DeWine and Portman are claiming that the constitution does not permit Congress to use the tax power to create a “mandate” that encourages Americans to carry health insurance.

There are not one, but three constitutional provisions that directly support the constitutionality of the health care bill:

  • The taxing authority of Congress (Art. I, Sec. 8, Clause 1)
  • The authority of Congress to regulate interstate commerce (Art. I, Sec. 8, Clause 3)
  • And, the “necessary and proper” clause relating back to the first two clauses cited above (Art. I, Sec. 8, Clause 18).

What’s funny is that Mike DeWine was a leading advocate in Congress against frivolous lawsuits, now he’s running on a platform to file one.

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