Legal Commentary

The argument against the constitutionality of the health care reform legislation continues to evolve.  In yesterday's Wall Street Journal, Randy repeats many claims I've already challenged.  He has a new one, though.  After appearing to concede that any federal statute that is called a tax and that raises revenue is within the taxing power, he asserts that the individual responsibility requirement fails this test because Congress didn't call it a tax.  

Let's see.  The IRR is part of the Tax Code (new section 5000A).  The legislation calls people who pay it "taxpayers."  (E.g., in sec. 1501 of the health care legislation).  It defines the amount that they pay according to the "taxpayer's household income," which is based on their "modified adjusted gross income," during the "tax year" as defined by the tax code.  HCERA sec. 1002(a), 1004.   

So, the new legislation uses the letters "t-a-x" in reference to the IRR only when those letters are followed by "Code" or "payer" or "year."  I guess there could be some kind of super-ultra-clear statement rule out there that would say Congress hasn't clearly called this thing a tax.  But seems to me that designating a provision as part of the Tax Code is pretty darned clear.