Why the ObamaCare Tax Penalty Is Unconstitutional

The federal power to tax is not unlimited, as the Supreme Court recognized when it struck down the first national income tax.

By J. KENNETH BLACKWELL AND KENNETH A. KLUKOWSKI at The Wall Steet Journal

The Justice Department announced last week that it would defend the new federal health-insurance mandate as an exercise of Congress's "power to lay and collect taxes," even though Barack Obama had insisted before the bill's passage that it was "absolutely not a tax increase." The truth is the mandate is not a tax—and if it were it would be unconstitutional.

A tax is when the government takes money from individuals, puts it in the Treasury, and plans to spend it. With the health-insurance mandate, the government is not taking money from private individuals; rather, it is commanding them to give their money to another private entity, not to the Treasury. If individuals don't obey the mandate, they pay a penalty to the Treasury. But penalties aren't taxes. The mandate is legally separate from the penalty.

Even if the Justice Department were to get the mandate considered a tax, it would be an unconstitutional one. Unlike states, the federal government has limited jurisdiction. Under the 10th Amendment, the federal government has only those powers enumerated by the Constitution, and all other powers are reserved to the people or the states. Every federal action must be authorized by a constitutional provision. If there is no such provision, then the action is unconstitutional. No provision of the Constitution authorizes the federal government to command people to buy insurance.

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