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July 03, 2012

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anon

1. Justice Antonin Scalia wondered whether Congress could enhance the health of Americans by requiring them to purchase broccoli. Yes--Under the commerce power, Congress can require groceries and restaurants to include broccoli with every sale of food.

No to the question. There are five votes against this, including Roberts and the four dissenters. Regarding the regulation of food sellers, completely different question, as they are engaging in commerce. Tying would probably be violative of various existing laws, and might not survive a rational basis test.

2. Justice Samuel Alito wondered whether Congress could require people to carry burial insurance. Yes--In fact, there already is a small, lump sum death benefit as part of Social Security.

What does this have to do with a purchase mandate? This is just an expenditure of funds collected by Social Security. The better question is whether SS is a tax ... the same bait and swtich game was played then. SS was billed as insurance, but sold to the Supremes as a tax.

3. Judge Roger Vinson wondered whether Congress could require people to buy GM cars to protect the government's ownership stake in the company. Yes--Congress can tell service stations that they may sell gasoline only to owners of GM cars.

"Require to buy cars" does NOT equal "tell service stations how to sell gas." Completely inapposite.

anon

Here are some questions of my own:
1. Can Congress impose a tax of $1,000 on any person who fails to file, with that person's income tax return, proof of purchase of at least 20 pounds of broccoli accompanied by a declaration that that person ate all of it during the year?
2. Can Congress impose an estate tax of $10,000 on any person who dies without burial insurance?
3. Can Congress impose a sales tax of $20,000 on the purchase of any auto that is not made by GM?

David Orentlicher

With regard to your first post, anon, I don't understand why you distinguish between direct and indirect purchase mandates. Why does it matter whether Congress requires me to buy broccoli or prohibits me from buying other foods without broccoli? If I can’t buy other foods without broccoli, I’ll buy broccoli. And If I can't buy gas for a non-GM car, I'll buy a GM car. (If you think people will just refrain from driving, then Congress could make ownership of a GM car a requirement of purchasing any vehicle, whether a car, truck, motorcycle, bicycle, skateboard or wheelchair. Congress also could make ownership of a GM car a requirement of buying a ticket for a plane, train, boat, bus or subway, or of using a taxi or limousine. And if you think these laws would fail rational basis review, then so would a direct mandate to purchase broccoli or a GM car. With rational basis review protecting us, there’s no need to rely on an activity-inactivity distinction for protection.)

Tying arrangements are permissible, and Congress passes them all the time. You can’t buy a car without seat belts, a television without a V-chip or a mobile home without a smoke alarm.

Of course, the Social Security burial insurance represents an exercise of the taxing power. And it illustrates just how much power Congress still has after NFIB. It can use either its commerce power or taxing power to impose purchase mandates.

With regard to your second post, all three types of tax would be valid (except perhaps for the requirement to eat broccoli—remember we’re speaking about “purchase” mandates). However, your examples may run into problems with the amount of the tax. Recall Justice Roberts emphasizing the point that the individual mandate does not impose a substantial burden. On the other hand, recall Justice Scalia in Cruzan when he wrote that the Constitution does not prohibit us “from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day.”

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With regard to your second post, all three types of tax would be valid (except perhaps for the requirement to eat broccoli—remember we’re speaking about “purchase” mandates). However, your examples may run into problems with the amount of the tax. Recall Justice Roberts emphasizing the point that the individual mandate does not impose a substantial burden. On the other hand, recall Justice Scalia in Cruzan when he wrote that the Constitution does not prohibit us “from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day.”

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the point that the individual mandate does not impose a substantial burden. On the other hand, recall Justice Scalia in Cruzan when he wrote that the Constitution does not prohibit us “from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day.”

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