Could a future president decide not to enforce the individual mandate?

Paul Larkin Senior Research Fellow, Heritage Foundation
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Supreme Court decisions often leave one group or another feeling poleaxed. Two weeks ago, liberals went nuclear because the Supreme Court had the temerity to suggest — not conclude, just suggest — that one of its earlier pro-labor union decisions may have been wrong. Last week, the court’s decision on Obamacare had conservatives howling. Three weeks ago, conservatives reacted similarly to the administration’s decision to waive deportation proceedings for certain types of illegal aliens, including military veterans and high school graduates who had been here continuously since they were knee high to a grasshopper.

Conservatives looking for a silver lining may find some comfort here by remembering a principle of multiplication: Two negatives make a positive. Putting the negative Obamacare decision together with the negative immigration decree produces the following conclusion: If this administration can waive enforcement of the immigration laws on a selective basis, why can’t a different administration waive enforcement of the tax laws on the same basis — starting with that new tax known as “the individual mandate.”

The administration defended that mandate on the grounds that it was a lawful regulation of commerce in future medical care, designed to underwrite the universal coverage requirement in that law. The Supreme Court found that justification unpersuasive. Five justices, spread out over two different opinions, said that Congress cannot order people to undertake an activity just so Congress can regulate it. But a different majority of the court upheld the individual mandate on the grounds that it is a permissible use of the taxing power. Yes, Congress did not call the individual mandate a “tax.” But the court said that Congress can call a law whatever it wants — a “penalty,” a “revenue enhancement measure,” a “deficit reduction provision,” an “income redistribution section,” maybe even a “Doberman Pinscher” — but if the law looks like a tax, walks like a tax and talks like a tax, then it’s a tax.

Since the court was doing the talking, it’s not surprising that the court concluded that it’s for the courts, not the legislature, to decide whether something is a tax. (Note to self: I need to read those Origination Clause articles that I keep putting off.) And the court decided that the individual mandate is a tax. So, despite all the sturm und drang about the Commerce Clause, we wound up with a case about a tax that nobody but five people in America thought was a tax. It just so happens that their votes count for more than the rest of us put together.

But not to worry. Why? Just ask President Obama. In June, he said that he could decide not to enforce an immigration law requiring the deportation of people in this country illegally. His justification: “prosecutorial discretion.” What a concept! So many offenders, so little time. We just have to pick and choose.

Apparently, President Obama’s thinking goes like this: As long as a president does not act on an invidious basis — say, race, sex or religion — he can decide which laws to enforce and which to ignore, which offenders to hound and which to leave alone. “These specific offenders are particularly attractive,” he decided, “so I will let them stay. Politics, of course, has nothing to do with it. I’m a humanitarian — see my Nobel Peace Prize. They can stay.”

The president’s decision, however, does raise the interesting question of whether a successor could do the same with Obamacare. Could a different president decide not to enforce the mandate, to order the Internal Revenue Service to refuse to collect the “penalty” individuals must pay if they don’t buy health insurance?

Consider this possibility: Company after company decides to jettison their employee coverage and let their workers take advantage of Obamacare’s expanded Medicaid coverage; the medical profession is in revolt because HHS bureaucrats have decided that the medical services that physicians wish to provide just aren’t cost-effective enough; and consumers are fed up with the growing wait times to see a doctor, now that so many physicians have left the field.

What’s to keep an equally humanitarian president from exercising his “prosecutorial discretion” to refuse to enforce the individual mandate? Doing so would help even more people than President Obama’s immigration decisions will. This future president would not be acting from invidious intent, just trying to improve the lot of the Average Joe. Nor would he be flipping off Congress; he’d just be using his Article II authority to decide how to enforce the law.

It seems like a fair comparison. Sauce for the goose, turnabout is fair play, what goes around comes around — pick your favorite cliché; it seems to work. So, why worry about the individual mandate and the rest of Obamacare?

There, that should make people feel better.

Paul J. Larkin, Jr., is a senior research fellow at The Heritage Foundation’s Center for Legal and Judicial Studies.