Today I testified to Congress's House Ways & Means Health Subcommittee on the constitutionality of the individual mandate. We submitted a brief arguing that the mandate is beyond Congress's power to tax.) I was one of four witnesses; I shared the panel with Carrie Severino of the Judicial Crisis Network, Steven Bradbury of Dechert LLP, and Professor Neil Siegel of Duke University Law School.
You can read my testimony and the shortened version I delivered here. The main points are that it's important that we know the difference between taxes and penalties or else we undermine taxpayer protections and the ability of state and local governments to collect fines and fees, that the individual mandate is a penalty and not a tax because its primary purpose is to change behavior and not to collect revenue, and that even if it is a tax, it's an unconstitutional one because it is a direct tax unapportioned by income.
The questioning was lively, and at one point, Congressman Ron Kind (D-WI), after calling the hearing a waste of time, directed a statement at me that he voted for the bill because it raised revenue, so therefore it is a tax. Time ran out before I could respond, but this is what I would have said (and have asked to be included in the record):
Congressman Kind stated that his primary purpose for supporting the law was that it would raise revenue, and therefore, it is a tax. First, let me thank the congressman for recognizing the importance of a clear line between taxes and penalties, based on the purpose of the assessment. Generally, the purpose should be determined by looking at all available evidence. Here, Congressman Kind's assertion is at odds with the text of the statute itself, the CBO report, the JCT report, the President's statements, statements of his colleagues on both sides of the aisle, the whole nationwide debate we had at the time, and justices across-the-board this week. The primary purpose of the law, objectively, is to punish so-called free riders and change their behavior, not to raise revenue.
As to Congressman Kind's critique of this hearing itself, let me give one reason for why he should not consider a discussion focused on constitutional issues to be a "waste of time," as he put it. One does not have to be a member of the Judiciary Committee or on the Supreme Court to have views on what is constitutional. Professor Siegel has his views. I have mine. Many of us here do. The Judiciary Committee and the Supreme Court are not the only arbiters of this. This is especially the case for you, members of the committee, who took an oath to defend the Constitution. I would not think it a waste of your time to hear input on what is and is not constitutional.
Thank you.
The justices gather on Friday to vote and assign the author of the opinion. We'll hear their decision no later than the end of June (and probably in the very last days before the Court adjourns for summer).
