On September 8 the U.S. Court of Appeals for the Fourth Circuit dismissed two suits challenging Obamacare without ever reaching the merits. In the case brought by the Commonwealth of Virginia, the court held that Virginia did not have standing to challenge the insurance mandate on individuals. In the case brought by Liberty University, the court ruled that the mandate was a “tax” as defined in the Anti-Injunction Act, which denies federal courts jurisdiction until after the tax has been paid. (Plaintiffs must pay and sue for refunds instead.)
To say that a levy is a “tax” under the Anti-Injunction Act is not to say that it is also a “tax” as the Constitution uses the word. However, the Obama administration also is arguing that the mandate is a “tax” under the Constitution, and thus may be imposed even if not justified by the Commerce Power.
To see if this is right, let’s review what the Constitution means by “tax.” Fortunately, this is not a matter about which we must guess or speculate. The line between “tax” and “non-tax” was a huge issue in the years leading up the Revolution. In fact it was one of the principal issues over which the Revolutionary War was fought.
When the 13 original states still were colonies, Parliament imposed two kinds of financial exactions: (1) exactions for the purpose of regulating commerce among units of the British Empire, and (2) exactions for raising revenue. Most of the Founders conceded that Parliament had power to do the former, but not the latter. The Founders believed that only local colonial assemblies had power to tax the colonists.
For example, if Parliament imposed a very steep tariff on French clothing designed to help British textile manufacturers by pricing French clothing out of the British Empire, that tariff was a regulation of commerce. It was not a “tax” because it was actually designed to stop French goods and, if it worked as intended, would not raise significant revenue. (If it raised anything, the funds generated probably would be less than the cost of administering the tariff.) Similarly, if Parliament imposed a levy on ships entering a particular harbor and dedicated the entire proceeds to improvements in that harbor (or for other navigation purposes), the levy was a regulation of commerce, not a tax. Thus, the now-famous 1798 law by which Congress imposed a levy to fund health care for sick and disabled seamen was a regulation of navigation, and therefore of commerce, and not a tax.
On the other hand, when Parliament imposed an excise on the colonists’ use of legal documents for the purpose of generating revenue (the notorious Stamp Act of 1765), the colonists resisted. This, they said, was a tax, and only local colonial assemblies could impose taxes on the colonists.
One more distinction: If a tax was imposed partly to raise significant revenue and partly to discourage the taxed behavior it still was a tax. Thus a levy on playing cards that discouraged, but did not prevent, the purchase of cards, was a tax if it raised significant revenue.
The evidence indicates that this is the line the Founders also applied in the Constitution: If Congress imposes an exaction to raise revenue, it must be justified under Article I, Section 8, Clause 1 (the Taxation Clause). If the exaction is part of a regulatory scheme, it is a regulation, and must be justified by some other enumerated power (usually the Commerce Clause, I-8-3, together with the Necessary and Proper Clause, I-8-18).
A good example of how the difference works in practice appears in the Constitution at Article I, Section 10, Clause 2: A state may impose an duty on exports only if absolutely necessary for funding state export inspection laws—that is, if it is a regulation, not a tax. If the duty does result in surplus revenue, it is a tax and the surplus must be turned over to the U.S. Treasury.
The legislative history of Obamacare shows that the individual mandate was clearly intended to regulate conduct rather than raise revenue. If it can be justified at all, therefore, it must be justified as an exercise of the congressional Commerce Power, not as an exercise of the Taxing Power.
For more on this issue, see the beginning of Chapter 6 in my book, The Original Constitution: What It Actually Said and Meant.