Obamacare paper: preliminary draft.

Comments welcome (eagerly solicited); paper on SSRN.


This paper attempts, using philosophical methods, to make sense of the Chief Justice’s distinction between the individual health insurance mandate understood as a command under the commerce power and understood as a tax.

Roberts argued that the commerce clause does not authorize Congress to compel citizens to participate in interstate commerce, but that the tax clause does allow Congress to tax citizens’ decisions not to so participate. This position suggests (as does Roberts) the proposition that taxes do not compel in some relevant sense; accordingly, Roberts drew a drew a distinction between a commerce power regulation, which “restricts” a citizen’s “lawful choice” to do or not do some act, and a tax, which allegedly does not work such a restriction.

In this paper, I interpret that part of Roberts’s argument in the spirit of the principle of charity, with the aim of understanding the opinion in its most convincing form. The analysis focuses on the notion of a “lawful choice.”

Section 1 supposes that the word “choice” does the work; I show that Roberts’s argument is not sustainable when interpreted as the claim that the mandate does not interfere with citizens’ choices to not purchase health insurance.

Section 2 supposes that the work is done by Roberts’s claim that Congress does not have the power to “compel” citizens under the taxing clause. I consider whether the argument can be charitably interpreted as the claim that, while the individual mandate is an interference with citizens’ choices not to purchase health insurance, it is not a coercive interference within the meaning of a plausible conception of coercion. This interpretation fails too.

Finally, section 3 supposes that the word “lawful” does the work. This version of the argument succeeds: the Chief Justice’s claim can be charitably understood as an interpretation of what it means for an act to be unlawful. For the state to say that an act is unlawful and impose a penalty on it is to express disapproval of that act; no such disapproval is expressed merely by taxing an act. NFIB v. Sebelius raises this expressive aspect of outlawing to constitutional significance.


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