Retirement and Social Security Reform
Is Obama's Tax On Health Care Constitutional?
Investor's Business Daily
September 26, 2009
By Ernest S. Christian and Betty Jo Christian
Without regard to one's views about the health care legislation
promoted by President Obama and currently being redrafted
by Sen. Max Baucus, everyone is entitled to expect that the
task will be carried out with competence and integrity - also
with dignity and a high regard for the intelligence of the
Further, even if everyone agreed that the proposed federal
interventions in health care were consistent with "best
medical practice" and produced the best possible medical
care at the least price, all these federal actions would still
have to meet constitutional standards.
The controversial tax that both Obama and Baucus would impose
on people who do not buy health insurance appears to be a
"direct tax" on persons that is unlawful under Article
1, Section 2, of the Constitution, which requires that "direct
Taxes shall be apportioned among the several States ... according
to their Numbers . .. ."
In addition, Art. 1, Sec. 9, says: "No capitation, or
other direct Tax, shall be laid, unless in Proportion to the
Census or Enumeration herein before directed to be taken ...
The only exception to the constitutional prohibition against
unapportioned direct taxes is for the federal income tax,
which was authorized by the 16th Amendment - but the direct
tax on the uninsured is not an income tax.
Sen. Baucus claims that the tax on the uninsured is an "indirect"
excise tax - like the federal gasoline tax - that does not
have to be apportioned. But Sen. Baucus appears to be in error.
An excise tax is a tax on a "thing" (such as a commodity
or a license). That is why an excise tax is classified as
People who choose not to buy insurance are not things.
They are people. And the tax is imposed directly on them in
exactly the same way as a direct income tax, except that in
this instance, the tax amount does not depend on the size
of the person's income.
This constitutional defect in one of the linchpin elements
of the health care legislation was not brought to light for
public discussion by either the White House or the chairman
of the Senate Finance Committee.
Instead, it was exposed a few days ago by Sen. Orrin Hatch
of Utah, one of the few people in this rapidly deteriorating
health care drama who are conducting themselves with a high
degree of intelligence and regard for the integrity of the
Constitution and our basic civic institutions.
President Obama recently got himself into an embarrassing
contretemps with a TV personality on a Sunday talk show about
whether a tax is a tax.
He insisted that the tax on the uninsured is not a tax at
all, but instead a federal fine or penalty imposed on those
who fail to do what the government has told them to do.
In opting to rely on the government's power to regulate instead
of its power to tax, he has jumped from one constitutional
briar patch into another.
The Supreme Court in United States v. Lopez has narrowed the
scope of what Washington can do to us under the guise of regulating
"commerce ... among the several states ... ."
A fine or penalty on the uninsured could pass muster only
if a person's individual choice not to buy insurance has a
"substantial effect on commerce."
It is not sufficient that forcing people to buy health insurance
might be good for them or help the economy or the public fisc.
Let us all hope that that the court stands fast - because
if Barack Obama can make us buy a designated insurance policy,
why can't he make us see designated doctors, submit to designated
treatments, send our children to designated schools, force
us to live in designated neighborhoods, give our money to
designated charities (such as Acorn) and do all kinds of other
In the past, President Obama is reported to have expressed
frustration with the Constitution, classifying it as a negative
document that mostly says what government can't do rather
than concentrating on what government can do to make things
He is also said to have claimed power and prerogatives because
"I won," referring to the fact that he got more
votes last November than his opponent - as if America were
a prize won in a game or raffle that he can now do with as
Not so, Mr. President, not so.
Ernest S. Christian is a tax lawyer who was deputy assistant
secretary of the Treasury in the Ford administration. Betty
Jo Christian, who served on the former Interstate Commerce
Commission, is an appellate lawyer who has argued "commerce
clause" and other constitutional cases before the Supreme