Gowder on Death and Taxes in the individual mandate: The Finger-Wagging Lopsided Giant?

By Christopher Robertson

Paul Gowder (Iowa Law) has shared a draft of his new article, Death and Taxes in NFIB v Sebelius.  Gowder thoughtfully develops some of the themes that I gestured towards in my “Lopsided Giant” post last week, trying to figure out how the Roberts opinion could uphold the constitutionality of the individual mandate as a regulatory tax but not as a regulation of commerce.  Drawing on a range of philosophical sources, Gowder tries “to aggressively apply the principle of charity to understand what the opinion actually means by making sense of it.”  (I love the ambiguity with the word, ‘making.’)

Gowder is smart in his use of philosophers (from Hayek to Raz, and others) to try to shed some light on Roberts’ ideas about coercion and regulation.  Gowder’s analysis makes me think that the Roberts’ opinion might deserve an even broader examination of whether there is a coherent theory of coercion between the individual mandate section and state mandate to expand Medicare section.  On the other hand, Gowder reaffirms my sense that the individual mandate’s Commerce Clause problem was not that it was too coercive.

The most provocative question is why the mandate was upheld as a tax.  On Gowder’s charitable reading, Roberts’ opinion does not provide Congress with unlimited power to mandate behavior using the tax power.  It is strictly limited.  But the limitation is merely one of “expressiveness”, depending on whether a mandate “labels those who break it as lawbreakers.”  (p16)  As I discuss below the fold, this creates a novel rule of Constitutional law — we might call it the finger-wagging-rule.   

We now know that broccoli is the test of any constitutional theory.  Thus, I argued last week that Chief Justice’s tax analysis permits a broccoli mandate, and Gowder agrees (p17):

Consider the notorious “broccoli horrible”: Roberts suggested that if the individual mandate were upheld under the commerce power, it would allow Congress to paternalistically force people to purchase broccoli on the notion that by doing so, they would be participating in interstate commerce. As a commerce clause regulation, this would have been objectionable. But, based on the logic of the tax argument, so long as Congress does so without labeling non-broccoli-eaters as lawbreakers, it can impose a non-broccoli-eating tax on citizens who don’t consume at least a given amount of broccoli per week. And it can do so even if it doesn’t bother to label the bill a tax first.

Colbert Finger WagOn Gowder’s interpretation of Roberts, Congress can make you buy broccoli (by threatening to tax you so much that noncompliance would be irrational), as long as Congress does not also wag its finger and call you an outlaw.

On this theory, only the enumerated powers give  Congress the ability to wag its collective finger.  Presumably, the Congressional power of expression would include affirmative expressions too, such as the recognition of “National Catfish Day.”  That one is probably safe given the commercialization of catfish, but I wonder if we should now expect a Morrison-challenge to Congressional expressions of support for the National Sexual Assault Awareness Month?  We do have some caselaw (e.g., Rust v. Sullivan) about whether and how Congress can use the spending clause to express itself, or refuse to fund expressive activity by others.  Thus, I expect that the tax-and-spend clauses do allow for expressiveness, apparently just not with regard for the particular label of “outlaw.”

Gowder’s account may well be the most charitable reading of what the Chief Justice means.  However, it is hard to make sense of why the Framers would have been, or should have been, so preoccupied with whether and how Congress expresses itself with this particular label.  My sense is that the Framers were pragmatists — they cared about liberty actually experienced, general welfare actually achieved.  Or, at the very least, that is what we should care about now.

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