New Constitutional Amendment Would Abolish Obamacare’s “Mandate Tax”

I’ve been known to say that Chief Justice Roberts’s transmogrification of Obamacare’s individual mandate created a “unicorn tax” — a creature of no known constitutional provenance that’ll never be seen again. Well, here to ensure that more than congressional discretion prevents any future tax on non‐​purchases is a constitutional amendment that was recently floated by Congressman Steven Palazzo (R‑MS). 


Rep. Palazzo has introduced H.J. Res. 28, which would overturn last summer’s Supreme Court decision that, for the first time ever, under certain limited conditions, granted Congress the power to tax inaction. The amendment reads, in its entirety, as follows: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.”


Short and sweet and, with the mandate‐​tax set to take effect this next January, now is the time to act to prevent about 11 million mostly middle‐​class Americans from getting hit. Indeed, the CBO estimates that 70 percent of those currently without insurance and earning less than $94,000 a year will get slapped with the mandate‐​tax that goes into effect in 2014. That doesn’t sound like a good, let alone fair, way of either “protecting patients” or ensuring “affordable care,” but hey, I’m just a constitutional lawyer.


Oh, and of course this amendment would prevent all other possible mandate‐​taxes as well, not just in the field of health care. 


It’s sad that we’ve come to this — the Constitution already prohibits taxes on inactivity — but of course there are many things that the government does (and which courts have allowed it to do) that are plainly unconstitutional. H.J. Res. 28 is an excellent start. 


For examples of more great ideas on how to rein in our out‐​of‐​control government, see Randy Barnett’s “Bill of Federalism” and the Compact for America.