The 11CA Individual Mandate Ruling - Round III


By Hadley Heath

This short series of blogs is cross-posted at

This is the third and final post in a short series about ObamaCare's most recent loss in appeals court at the 11th Circuit.  You can also find Round I or Round II of this series on the IWF Inkwell blog.

The federal government spends a lot of energy explaining that the individual mandate is a Constitutional, regulatory, economic mandate.  But just in case that's wrong, the defendant also spends a lot of time explaining that the mandate also functions as a tax, so - gotcha! - it's Constitutional one way or another.  So the 11th Circuit had to consider this argument.

Indeed, plaintiff states would be in trouble if the individual mandate were a tax because:

  1. The federal government can force us to do very few things: jury duty, the draft, the census, and oh yeah, paying taxes.  When it comes to collecting taxes, Congress has a lot of power. 
  2. If someone wanted to sue the government over a tax that was somehow unconstitutional, they'd have to wait until after the tax was collected (because of the Anti-Injunction Act).  And the individual mandate doesn't take effect until 2014.

But, Friday's ruling has at least one thing in common with every other ruling on ObamaCare: It stated that the individual mandate is not a tax.  The majority judges point out in their opinion that the "plain language of the statute" never uses the word "tax" to describe the individual mandate, but instead uses the word "penalty."  This is from page 177 of the ruling:

As the Supreme Court most recently recognized in United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 116 S. Ct. 2106 (1996), "‘[a] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.'" Id. at 224, 116 S. Ct. at 2113 (quoting La Franca, 282 U.S. at 572, 51 S. Ct. at 280). The Court further expounded upon La Franca: "We take La Franca's statement of the distinction [between a tax and penalty] to be sufficient for the decision of this case; if the concept of penalty means anything, it means punishment for an unlawful act or omission. . . ." Id.; see also Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 779-80, 114 S. Ct. 1937, 1946 (1994) ("Whereas fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes."). It is clear that the terms "tax" and "penalty" "are not interchangeable one for the other . . . and if an exaction be clearly a penalty it cannot be converted into a tax by the simple expedient of calling it such." La Franca, 282 U.S. at 572, 51 S. Ct. at 280.

Furthermore, the Court gets a little sassy while making its next point, "We add the truism that Congress knows full well how to enact a tax when it chooses to do so," and adding that ObamaCare contains numerous other provisions that are taxes, both in name, and substance, and function, and in every sense.  The majority also quotes Duncan v. Walker saying, "It is well settled that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." 

The ruling stopped short of saying this, but I will: Members of Congress who voted for the Act might not have understood which words were used where - since many of them did not read it before they voted on it.  That's no excuse; in fact that's just all the more shameful.

The Court goes on to say that the facts that 1) the individual mandate raises revenue ($4-5 billion) and 2) that it is housed in the IRS code do not necessarily make it a tax.  Penalties and fines also result in additional revenues for the government, and not everything in the IRS code is a tax; there are other penalties there too.  So in other words, just because it may look like a tax, smell like a tax, or sound like a tax, that doesn't make it so.  Congress called it a penalty, and ultimately it is one because it seeks to punish citizens for unlawful behavior.

Thus the individual mandate is not a tax. 

I've gotten far too wordy in Round III of this series, so to read about severability, you'll have to check out the Bonus Round.


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