In a startling development last week, the Obama Justice Department, defending against a host of lawsuits to invalidate the ObamaCare law, declared that the law's individual insurance mandate is not founded on the power of Congress to regulate interstate commerce. Surprise. It's a new tax.
The reason obviously, was that trying to hang the ObamaCare coverage mandate on the interstate commerce clause looked more and more like a loser in court.
In 1942 the federal commerce power reached its high water mark. In that year the Supreme Court informed Roscoe Filburn that he couldn't grow his own wheat to fatten his own hogs on his own farm, without submitting to the New Deal wheat management program.
Its argument was that if Roscoe hadn't grown his own hog feed, he would have had to go into the marketplace and purchase feed. A million hog farmers growing their own feed would of course wreck the New Deal regulatory scheme, that depended on every wheat farmer submitting to Federal crop production controls. Too bad, Roscoe.
But note the difference between Roscoe's case and the ObamaCare insurance mandate. The government regulation of the national wheat market was, by 1942, conceded to be a legitimate exercise of the commerce power. ObamaCare is something else.
ObamaCare mandates that by 2014 almost every American must prove to the IRS that he or she is enrolled in a government-approved health plan. Absent that proof, the IRS will hound the luckless citizen for a "penalty" of 2.5% of his or her income (by 2016), or $695 a year, whichever is greater.
In a 2008 debate with Hilary Clinton, Sen. Barack Obama scored points by strongly opposing this mandate policy, on the reasonable grounds that people without enough income to buy health insurance would be caught, fined, and still not have any health coverage. But that was then.