November 19, 2010

Spitzer v. Cuccinelli on Obamacare Litigation

I just want to add one comment regarding the tax/penalty distinction and the political limitation on federal commerce power. U.S. District Judge Roger Vinson, who allowed the challenge to proceed in Florida, said the following in ruling the mandate a penalty:
“Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.”
This goes to Cuccinelli's point about Congress and the President calling the punishment for violating the mandate a penalty, not a tax. Proponents cannot credibly argue that the only check on federal power is politics and then argue the mandate is a tax. It undercuts their whole theory, and, by doing so, they prove that, should the mandate be found constitutional, there is no limit to federal power.