Earlier in the week, Mike Greve attempted to explain why the Republicans have been able to stay together and avoid a conservative crack-up, despite their conflicting factions: The atrocious Bush 43 years left conservatism spent, exhausted, and discredited. Under a focused, level-headed, first-things-first Democratic administration, conservatives would have been destined to spend many years in opposition, either to do what opposition forces are supposed to do (regenerate themselves) or else in mutual recrimination. But there was never any time for that: it was pedal-to-the-metal debt, Obamacare, and Elizabeth Warren from day one. Under those conditions you don’t need “bricolage” or jazzed-up…
My co-blogger, Mike Greve, defends Michael Paulsen against my criticism of Paulsen’s defense of Chief Justice Roberts’s tax argument in Sibelius. While Paulsen describes himself as an originalist, and Greve is uncomfortable with orthodox originalism, it is important to recognize that Greve and Paulsen have something very much in common. They are both strong Hamiltonians and therefore it is no surprise that Greve feels the force of Paulsen’s nationalist arguments. It may be their affinity for Alexander Hamilton – who failed to appreciate American federalism – that leads these two Mike’s astray.
First, Greve argues as follows:
the constitutional question isn’t whether Congress was invoking a particular power [that is, the tax power] but whether it had the power.
Mike Rappaport tries to fight that proposition. Suppose, he says, Congress imposes a retroactive criminal penalty, which would be unconstitutional under the Ex Post Facto Clause: should the Court sustain the measure nonetheless because Congress had the power of imposing the same fine as a civil penalty and pursuant to its taxing power? Well, no. The designation (“criminal/civil”) makes a practical, operational difference: depending on what the measure was enacted as, you either owe the money or you don’t. Not so with the mandate: call it what you will, you owe it and it operates as a tax. Because nothing hangs on the label, the only question is the power. And on that score, even the plaintiffs conceded throughout that Congress could have imposed the mandate as a tax.
I believe Greve misses my point here. My point was that there is no difference between the penalty/tax case and criminal fine/civil penalty case. According to Greve’s logic, one would have to argue that the criminal fine should simply be reinterpreted as a civil penalty, which would make it constitutional. But most people would not accept that argument. They would say that it matters that Congress said it was a criminal fine, which is a different thing than a civil penalty. Similarly, I am arguing that it matters that Congress called its action a penalty (and not only termed it thus, but made it substantively the sanction for violating the obligation to purchase health insurance – remember, taxes are not imposed as penalties for violating the law).