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. Read More
