DOJ Defends Insurance Mandate on Commerce Clause and Taxation Grounds

The New York Times reports that the Department of Justice has defended the insurance mandate, contained in the recent healthcare legislation, as a tax. The primary justification remains the power to regulate interstate commerce. The taxation argument, according to the article, represents a secondary justification.

I have previously argued that the administration should defend the mandate as a commercial regulation and as a tax. During the healthcare debates, however, the White House said that the mandate was not a tax. I grimaced. Cooler, less political heads, have apparently prevailed during the litigation. Certainly, the mandate is not a general income tax. It only impacts individuals who are uninsured and who do not qualify for insurance subsidies.