Freedom Line Blog

“Homer Nods” is the heading under which James Taranto, one of the commentators whom I most admire, acknowledges an error in a preceding “Best of the Web Today.”

In that spirit, my commentary regarding the ObamaCare decision yesterday included the following paragraph:

It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare and its individual mandate as a “tax.”  The text of Article I, Section 8 of the Constitution explicitly provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  Thus, the federal government can tax and spend on behalf of almost anything it considers to advance the nation’s general welfare, even if its power to more crudely compel or prohibit actual behavior beyond that spending carrot is more limited.”

Below, Quin correctly notes an error in the first sentence.  Namely, his point that “taxing authority has never stretched so far.”

My initial sentence should have omitted the words “and its individual mandate,” and simply read, “It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare as a ‘tax.'”  Although some libertarians and conservatives such as Walter Williams claim that Article I, Section 8’s authority to tax and spend for the general welfare are limited by the powers subsequently enumerated in that Section, that argument does not possess textual support.

Nevertheless, Quin is correct that taxing mere existence and inactivity as ObamaCare’s individual mandate does is unprecedented and unjust.  While Obama and the Pelosi-Reid Congress could have simply attempted to raise taxes more generally as a means to fund their monstrosity, yesterday’s decision pioneered new and unfortunate ground in allowing their particular individual mandate mechanism to survive.  I maintain that yesterday’s ruling with regard to the commerce clause limitation, not to mention the “Necessary and Proper Clause” and Medicaid rulings, make it a net win as a Constitutional matter.  Those were critical, groundbreaking limitations on federal power.   Quin’s observation, however, is quite correct.