Does The "If It Looks Like A Tax And Walks Like A Tax, It Is A Tax" Rule Apply To Public Use?

by Robert Thomas, InverseCondemnation.com

We haven't followed the Obamacare cases except as interested observers, and have largely avoided digging deep into the opinions, preferring to allow minds immeasurably superior to ours to provide the high-altitude view. However, we naturally scanned the majority opinion for any tie-in to our favorite topic, eminent domain.

Starting on page 33, the Chief Justice writes about the "functional" approach to legislative labeling, pursuant to which the majority concluded that the requirement to purchase insurance (the "mandate") was a constitutional exercise of Congress' taxation power, even though Congress did not call it a "tax," and indeed packaged and sold it as anything but a tax. The majority concluded, "[t]hat constitutional question [is] not controlled by Congress's choice of label." Slip op. at 34. The opinion then provides examples where the Court held that particular exactions "not labeled taxes nonetheless were authorized by Congress's power to tax," because the Court is "concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it."

Why that's a splendid idea, bully on that! We're starting to appreciate the Chief's "functional" approach. What say we apply that same test to a legislature's statement regarding the "public use" for which it is condemning property? What, you say, we can't do that, the standard the courts apply in eminent domain is to look only at "the taking's [stated] purpose, and not its mechanics?"

I, for one, am glad that CJ Roberts has seen the light, and will vote to grant cert next time someone files a petition seeking to overturn Berman, Midkiff, and Kelo.