Last week, I gave some thought to exactly what sort of new tax Supreme Court Chief Justice John Roberts had created by reading the health insurance mandate of the Patient Protection and Affordable Care Act (PPACA) as a tax. My conclusion was that the only logical reading that satisfies the constitutional restraints is that it’s a capitation tax (assessed per person) for which purchasers of health insurance and those with inadequate income receive a credit on their income tax returns.
Obviously, any attempt to categorize the tax are necessarily read into the law, because there are no provisions for taxation. Indeed, the Obama administration continues to refuse to call the mandate a tax (although not simultaneously acknowledging that it must therefore be unconstitutional).
That said, presumably the country will have to move forward with this new meaning of tax, so it behooves us to determine what exactly it is. In doing so, the old rule of thumb for science fiction stories comes to mind: The author can ask readers to suspend disbelief on a few major points (e.g., the reality of magic), but the imagined universe otherwise has to operate by pretty the same rules of physics as our real one and to be logically coherent.
National Review Senior Editor Ramesh Ponnuru’s solution, offered on Bloomberg View, is a bit simpler than mine: He characterizes the mandate as a tax deduction. Although he stresses that the Justice Roberts’s argument is not persuasive, whatever the case, Ponnuru’s deduction example isn’t really applicable for a few reasons.
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