Some lower-court judges hostile to the ACA have even gone along. Just over a year ago, Virginia District Judge Henry Hudson, in approving Virginia Attorney General Ken Cuccinelli’s challenge to the mandate, relied on a notorious 1922 decision known as the Child Labor Tax Case, which barred Congress from imposing heavy taxes to discourage child labor on the theory that a predominantly “regulatory purpose” rendered a tax constitutionally invalid. While acknowledging that the case had been “dormant” for decades, Hudson nevertheless claimed that the “regulatory purpose” restriction it announced remains good law. Had the ACA utilized a pure tax-incentive mechanism as proposed by Paul Starr or adopted by the House bill, a conservative Supreme Court bloc bent on canceling Barack Obama’s signature legislative accomplishment would be perfectly capable of taking that same tack.
If anything, the ACA mandate’s case before this court looks more robust in its current, Commerce Clause-based format. This is because relying on the tax power would make it far easier for opponents to gain traction with what has been their most compelling big-picture, quasi-legal claim: If Congress can require people to buy health insurance, it can make us buy any “commercial product,” and broccoli mandates will be just over the horizon. The constitutional text defining the tax-and-spend power (to “provide for the general welfare of the United States”) is actually far more open-ended than its authorization of Congress to “regulate commerce.”
The Commerce Clause is certainly broad—as it needs to be to assure, as Justice Kennedy has written, that “Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy.” But it does confine Congress to genuinely economic matters which have a significant national economic impact. In contrast, “the general welfare of the United States” would be less helpful to ACA defenders, when they confront skeptical judges’ demands to “define a limiting principle” on Congress’ power to use its taxing powers to promote policy goals not otherwise authorized by the Commerce Clause or other constitutional provisions.
Moreover, it would seem more plausible for the general populace to viscerally grasp the mandate as a regulation of the economy, rather than to accept it as a good-faith “tax.” If “health insurance mandate” has proved a potent sound-bite for stirring fears of federal power run amok, imagine how “health insurance tax” would play!
Finally, nervous-Nelly second-guessing seems oddly unmindful of the record the ACA’s strategists have actually made in the courts so far. Repeatedly, eminent conservative appellate judges have blown off opponents’ demands to overturn this allegedly “unprecedented” federal power-grab. On the contrary, Republican appointees have concluded that upholding the ACA mandate is compelled by the text of the Commerce Clause and Supreme Court precedent, that it is no more “coercive” than other measures, such as dedicated taxes and tax write-offs undergirding major existing health-insurance laws, and, even, that the ACA’s approach could be a valuable model for conservative designs to privatize other components of the social safety net.
In any event, the quest for universal health insurance is an epochal political fight, and there is no way opponents would have failed to take it all the way to the Supreme Court, no matter how it was drafted. For the ACA to work—to prevent cost-shifting by the uninsured and assure affordable coverage for people who have pre-existing medical conditions—a purchase-incentive mechanism with serious bite was indispensable. The enacted package is in as strong a position before this Supreme Court as any comparably effective provision could be.