Calhoun’s Revenge: Frivolous “Sovereignty” Litigation

One of the criticisms regularly leveled against progressives, especially progressives fighting for social change, is that we treat the judicial branch as a third political branch, using it to litigate victories that we couldn’t win in the court of public opinion.

That’s actually true, to the extent that those victories turn upon legal rights. We couldn’t have won desegregation in 1954, for example, but for Brown v. Board.

Regardless, this recurring attack makes it all the more funny to see the GOP’s first response to the impending passage of healthcare reform —


Virginia’s Attorney General, who’s just a prince, pledged to seek the bill’s invalidation due to procedural defects arising from the since-abandoned “deem and pass” proposal. I’m sure he’ll invent other grounds. The Attorneys General of Florida and South Carolina say they’ll also sue, arguing that the individual mandate “violate[s] state sovereignty.” None of this is well-founded. In fact, we can dismiss the “state sovereignty” argument at the threshold.

Construing the debate over the constitutionality of the individual mandate to present a real issue, though, actually does create something interesting. From a due process standpoint, the argument that it’s an unconstitutional power grab does seem compelling: although it does happen, it’s rare that the government forces you to do something specific and novel, like buy insurance. The only problem is, the way the individual mandate actually works, it’s not something specific or novel — it’s a tax. From the reconciliation bill, which modifies the Senate bill:

Sec. 1002. Individual responsibility. Modifies the assessment that individuals who choose to remain uninsured pay in three ways: (a) exempts the income below the filing threshold, (b) lowers the flat payment from $495 to $325 in 2015 and from $750 to $695 in 2016 and (c) raises the percent of income that is an alternative payment amount from 0.5 to 1.0% in 2014, 1.0 to 2.0% in 2015, and 2.0 to 2.5% for 2016 and subsequent years to make the assessment more progressive.

The fact that the tax entails both a flat and a percentage payment is immaterial: the mandate operates by adding a § 5000A(c) to the tax code, and vests the IRS with collecting and enforcing the payments. The government enjoys almost unbridled authority to tax, even and especially for social policy reasons (think cigarettes). To the charge that the individual mandate somehow violates due process, or state sovereignty, an honest court will easily sustain its validity on the grounds that it’s just a boring tax provision.

Litigating the healthcare bill on these grounds wouldn’t even be impact litigation: it’d be an attempt to make a political statement by wasting the resources of the state justice department, and the federal court system, while raising the hopes of neo-secessionists. It’s embarrassing. But that’s where we are in this country today.



  1. Saying that it isn’t a tax reminds me of the argument that civil forfeiture and administrative confiscation aren’t punishments and thus have a lesser standard for compliance with due process: based on the name rather than the substance.

    1. Err, that it is a tax. Implication (that a “tax” imposed or not imposed as a condition of behavior is in fact a punishment being called a tax and not substantively a tax at all) was bleeding through into the explicity.

  2. I’d argue instead that the reason they’re a tax issue, and thus have a lower burden, is that the device if done under another name would properly also have a lower burden.

    1. I don’t follow. The device is conditioned on disfavored behavior: behave in the disfavored manner, it triggers the requirement to pay. That’s punitive, therefore it should be classified as a fine, no? Your example of the tax on cigarettes is incomparable, since it isn’t triggered by any action, but is simply a tax on an item. The rate is higher on the item, but that’s no different than a state having a food sales tax vs. a non-food sales tax. For the cigarette tax to be comparable to the health care charge, it would have to be levied on smokers – if you smoke, you must pay X – rather than cigarettes – the cost of a pack includes Y. And in that case, I’d classify it as a fine on smokers rather than a tax.

      Basically… only charges levied on transactions or items are taxes. Charges levied in exchange for something are fees. Charges levied because of behavior are fines.

  3. […] Calhoun’s Revenge: Frivolous “Sovereignty” Litigation […]

  4. Look at it this way: imagine your tax return has, as a deduction, “Do you have health insurance?” Boom. Same as “are you married?” or “have you payed student loan interest this year?”

    1. Ok, that makes sense. And you know, I don’t think there’s anything unconstitutional about Congress passing tax deductions, although I think it would be beneficial for there to be some more restrictions on that considering how useful it is for social engineering efforts and how much successful effort interest groups and lobbyists put into obtaining tax breaks as a form of pork for their industries.

      Still, that isn’t the method Congress used, and I think the method should matter.

      And it doesn’t say a thing about civil forfeiture.

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