To Regulate or to Tax

It has now been a week since the Supreme Court handed down its long-awaited ruling on the ACA. From an individual liberty perspective, it was either a dark cloud with a silver lining or a dark cloud with a dark lining.

I am not a constitutional scholar (though like many Americans, I have spent the last week playing one on Facebook), so I’ll spare you my legal interpretation. But what can we say about the political economy of the decision?

For one thing, the decision highlights the fact that fiscal and regulatory policies can be substitutes for one another. As George Mason University economist Richard Wagner put it some 20 years ago, “a central principle of public finance is that any statute or regulation can be translated into a budgetary equivalent.”

For example, Congress might have passed the individual procreation mandate. It might have fined every childless couple $3,000, every couple with one child $2,000, every couple with two kids $1,000 and every couple with three or more kids $0. Congress, of course, didn’t do this. Instead, they went the fiscal route and created the per-child tax credit, the marginal incentives of which are identical to what I have just described (up to the first three kids).

Alternatively, Congress might have imposed a tax on employers equal to $12,100 for each employee not paid $7.25 an hour. Instead, they went the regulatory route and created the federal minimum wage, the marginal incentives of which are identical to such a tax.

In my paper with Noel Johnson and Steven Yamarik, we explore the inherent substitutability of fiscal and regulatory instruments. Specifically, we look at state behavior in the presence of fiscal limits. We are interested in whether politicians substitute into regulatory policy when fiscal rules bind their decisions (we find evidence that they do). The ACA ruling essentially gets at the opposite phenomenon: the Court has ensured that Congress’s regulatory hands are relatively more constrained. Does this mean that Congress will substitute into fiscal policy, using taxes, tax credits, and spending to address questions that they might have addressed with regulatory instruments? My guess would be: yes.