Would a tax fix work for Obamacare's constitutional problems?

Federal District Court judge Christopher C. Conner further stoked passions over President Obama’s Patient Protection and Affordable Care Act by ruling Tuesday that a central aspect of the law is unconstitutional.

Conner, a Republican appointee who hears cases in Harrisburg, found that the federal government cannot order U.S. citizens to purchase products against their will. And that is exactly what the law would do. It is arguable whether that is a good idea or not, but it is indisputable that the federal government for the first time in the history of the United States will be telling U.S. citizens that they must buy a product, in this case, health insurance, or pay a financial penalty.

The Obama administration has advanced a number of arguments in support of this policy, most importantly the commerce clause of the Constitution, which gives the government the right to regulate the flow of goods and services between states. The Obama administration says it must compel citizens above a certain income level to purchase insurance in order for the system to work financially.

Yet, Conner opined, the federal government does not have that authority. States, afforded police powers under the constitution, can do that in the way that they can require citizens to purchase auto insurance if they want to own and drive a car.

 But the federal government cannot.

In a little noticed section of Conner’s opinion, he offered the federal government what must surely have been a bit of unwanted advice. Since the feds don’t have the power, at least in Conner’s view, to order citizens to buy things, they might try to raise revenue by passing a tax.

 This of course would be politically unpalatable and likely explains why the health care reform law requires citizens to obtain insurance on their own or pay a penalty. But if the federal government  is unable to obtain majority support for a new tax to pay for the program, Conner says, then perhaps the problem of access to health insurance is “not sufficiently acute."

The current line on all of this is that the Supreme Court will be taking this up sooner rather than later. University of Richmond constitutional law professor Carl Tobias said the court may grant cert within the next few months and hear the case in the spring. The reason for the accelerated time table: The requirement that citizens have insurance becomes effective in 2014. But two different appeals courts have issued rulings that are at odds. Having different law in different regions of the country on an issue this big and this complex would simply be unworkable, and the Supreme Court is mindful of this, Tobias says.