I'll first say that this decision was extraordinarily surprising to me. I was mildly surprised that the law was upheld. I was quite surprised that it was upheld under the tax power. And I was shocked beyond belief that it was Chief Justice Roberts who wrote the opinion upholding it.
Before we begin, I'll go ahead and save you the suspense by saying that I disagree with Chief Justice Roberts's opinion, but probably not for the reasons you'd suspect. I'll come to that later.
The purpose of this article is to spell out, for the layperson, exactly what was decided yesterday, with as little spin as possible. In today's spin-heavy news media it's rather difficult to get a fair perspective on the facts of a story like this, much less a fair perspective on how to evaluate those facts. I hope this post will be a remedy for that. Having detailed the facts, I'll then give my own opinion and perspective on those facts. I hope to do so in the manner that will give you, the reader, enough footing to intelligently agree or disagree. In that vein, I appreciate all feedback you might offer.
I do apologize ahead of time for the length of this post. I did try to boil it down to the essentials as much as possible. Unfortunately, there's a lot involved in this decision, and it can only be boiled down so much before you start to edit out really important elements — both elements that I believe are important; and elements that those who may disagree with me might believe are important. After all, the opinions themselves total 193 pages!
With all the preliminaries out of the way... on with the show!
Background
I'll start with the background facts up until the case reached the Supreme Court. For some of you, this may be old news, but it will help to ensure we're all on the same page before diving into the decision itself and trying to understand it.
The primary legal issue at stake in this case is section 5000A of the Patient Protection and Affordable Care Act (ACA). This section, the so-called 'individual mandate' sets up a program in which every qualifying person must either meet certain minimum requirements of health insurance coverage or pay a fee to the federal government. As characterized by the bill's opponents, this meant that the federal government was mandating individuals to buy health insurance with a fine to be assessed for failure to do so.
Thus, in response to the bill's passage, its opponents filed law suits against the federal government, asking the courts to strike down the law as unconstitutional (We'll get to the exact claims for its purported unconstitutionality a bit later.) The suits were filed in several courts by different parties. In the end, the individual mandate was upheld as constitutional by two circuit courts, struck down as unconstitutional by one circuit court, and entangled in a legal technicality in another circuit court.
It helps at this point to understand the federal court system, which I'll try to describe as simply as possible. The United States federal judicial system is split into 13 different judicial circuits, each of which has its own court. These circuits cover multiple states each (except the DC circuit, which covers only Washington, DC). When a circuit's court makes a ruling, it is binding and effective throughout the circuit. That ruling is, however, not binding anywhere else in the United States, though it may be persuasive when arguing before other circuit courts. E.g., 'The 7th Circuit decided such-and-such on this issue. Therefore you, the 3d Circuit should also.'
Because the issue is a far-reaching one and is political divisive, and because the circuit courts disagreed — termed a 'circuit split' — the issue was certain to be resolved by the Supreme Court. A ruling by the Supreme Court would, of course, be binding throughout the United States, overruling conflicting circuits' court decisions.
The other piece of vital background information is the basic Supreme Court operation. When the Court makes a decision, it is only really deciding the final outcome. It does not formally decide on a rationale. That is, if 5 of the 9 justices vote on a particular case, they are only voting on the ultimate outcome. They may have very different reasons for voting for that outcome — and often do. But that doesn't matter. Think of it like a criminal trial: what matters for the purposes of the trial is 'innocent' or 'guilty'; the reason each juror thinks so is of secondary importance, at best.
So what is the importance of the opinion which everyone has been poring over, if all we really need to know is the final vote? The main purpose of a court opinion is forward-looking. The court is essentially saying, 'Though they may not be important in the case we're deciding right now, we are telling you our reasons for our decision so that you can better predict how we will decide similar future cases and thus make informed decisions based on those reasons.' In addition, it also informs lower courts how they are to rule on similar cases to avoid having their own decision overturned by the Supreme Court.
As an example, let's imagine a Court is trying to decide whether domestic cats are members of the fictional category blfrghs. Going into the hearing, we may have some idea of what determines what are or aren't blfrghs, but we aren't quite sure. The decision comes down that cats are blfrghs. That's all that the court was really asked to answer, and it's done so. But as a courtesy to lawyers everywhere, the court also issues an opinion that says, 'We find that cats are blfrghs because all blfrghs must be mammals and less than 4 feet long. Cats meet that criteria.' The reason doesn't matter for that particular case, since it's already been decided. But next time there's a dispute about whether a particular thing is a blfrgh or not, you can look at that opinion and make an informed decision based on that opinion. For example, you can probably safely predict that the court would not decide that a Boeing 747 is a blfrgh, because it is not a mammal and is not under 4 feet long. On the other hand, we can't quite be sure if chihuahuas are blfrghs; they fit the criteria of the court, but the court didn't say if those were the only defining characteristics of blfrghs. Remember this purpose and effect as we discuss the Court's opinion.
One final thing to keep in mind is that every opinion is written by some particular justice. If the Chief Justice is with the majority, then he usually writes the opinion. That is what happened in this case. Remember what I said immediately above, though. Just because he was with the majority (a 5-4 majority here) does not mean that the other four justices who voted with him agree with everything he writes. Where they disagree, they often write what are called concurring opinions. These basically say, 'We agree with the Chief Justice on the final outcome of the case, but disagree with him on certain aspects of his opinion.' Likewise, those who voted in the minority may also issue what is called a dissenting opinion. These basically say, 'We disagree with the majority on the final outcome of the case, and here is why.'
The purpose of concurring and dissenting opinions, like 'official' opinion of the court, is also forward-looking. It informs lawyers how each of the justices will likely vote in similar future cases. No two cases are exactly alike, and so lawyers will refer to all opinions to determine how the particulars of a new case match up to the particulars of previous cases; and whether those differences might affect how each of the justices will vote the second time around.
With all that said... on to the opinion!
The Opinion of the Court
The basic question before the Supreme Court in this case was, 'Does Congress have the power, under the Constitution, to make the individual mandate federal law?' For this to make sense, we must first understand what power Congress has under the Constitution; for it cannot simply pass whatever law it wishes (regardless of what its members on either side of the aisle think). Most people are familiar with certain prohibitions on Congressional action, such as those in the Bill of Rights. E.g., 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' But those prohibitions are not the only restrictions.
Article I, Section 8 of the Constitution spells out exactly what powers Congress has: the so-called enumerated powers. Any other legislative powers which you might imagine, other than those listed in Section 8, are, as clarified by the 10th Amendment, reserved to the States or to the people. In other words, if Congress cannot justify a particular law under one of the enumerated powers in Section 8 — even if the law does not violate the familiar Bill of Rights prohibitions — it has no power to pass that law. If challenged in court, it will be struck down as unconstitutional.
That was the challenge that ACA's opponents put before the Court: Congress had no power by which they could pass the individual mandate. The government responded that it did have the power — under two possible clauses of Section 8, in fact. We'll treat both of the government's justifications in turn.1
Commerce Clause
The first justification given by the government was the Commerce Clause. Article I, Section 8, clause 3. This states, in brief, that Congress has the power 'to regulate Commerce . . . among the several States'. As is common in constitutional law, what superficially appears to be crystal clear language has been obfuscated by over two centuries of court decisions — most of which deal with admittedly difficult cases — leading to a rather complicated legal doctrine.
In the first century of the United States, the commerce clause was interpreted rather cleanly. If the law addressed the movement of goods, services, or monies across state lines, it was interstate commerce and could be regulated by Congress. If nothing crossed state lines, it was not and could not be regulated by Congress. (Individual states were, of course, free to regulate commerce within their boundaries. Remember, the federal government isn't the only government in the United States; just because Congress can't pass a law doesn't mean a state government cannot.). If you grew wheat but only sold that wheat to buyers within your state, you could pretty safely be free from Congress's power to regulate interstate commerce.
Then came FDR's New Deal programs. The New Deal affected a large part of 'politics as usual' and large chunks of constitutional law changed with it. One of those big areas of change was the Supreme Court's interpretation of the Commerce Clause. To make a long story short, the Court, partially in reaction to the United States' increasingly more national (and less local/regional) economy, expanded the scope of the Commerce Clause rather quickly. The end result was that Congress was now empowered under the Commerce Clause to regulate activities which affect interstate commerce, even if those activities were not themselves interstate in nature. In our wheat example, that meant that Congress could now regulate the harvest of wheat since that wheat might eventually be sold in another state.
This New Deal interpretation of the Commerce Clause persisted until 1995, when, in U.S. v. Lopez the Rehnquist Court struck down a law under the Commerce Clause for the first time in 60 years. In the opinion of that case the Commerce power is defined as 'the power to regulate those activities that substantially affect interstate commerce'. Not all that clear, but that's where it lies.
Thus, when the Supreme Court was faced with ACA, it had to ask whether the individual mandate is a regulation of activities which substantially affect interstate commerce. Now, to be clear, because the Supreme Court is the highest court in the land, it is not bound to follow its own precedent. If it wanted to effectively overturn the Lopez decision, it would be perfectly free to do so on its own; just as the Court during the New Deal effectively overturned previous decisions. There has been much ink spilled over when and how it's a good idea to stick to or rethink precedent. We won't discuss that here; I just wanted to note that possibility.
In the end, the Court found that the individual mandate did not regulate an activity that substantially affects interstate commerce. The key element in this portion of the decision was that the Court found that the individual mandate regulated inactivity, not activity. That is, the fee imposed by Section 5000A was on those who declined to participate in the commercial field of health insurance. 'If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.'
The Court quickly recognized that it has never been asked before whether the Commerce Clause covers inactivity — making the case one of 'first impression', to use the legal term. So even if the Court were to rigorously stick to precedent, it doesn't really have one to go on. Thus, the opinion engages in over 10 pages discussing whether the Commerce Clause should cover 'inactivity' as well as 'activity' and whether the individual mandate really does regulate 'activity' or 'inactivity'.
In deciding that the Commerce Clause should not be interpreted to allow the regulation of 'inactivity', the central argument is that it would be far too slippery a slope. As Roberts writes:
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government's theory—empower Congress to make those decisions for him.'
Indeed, it could be very difficult for the Supreme Court to come up with some rule or standard for determining when Congress has gone 'too far', allowing the regulation of some 'inactivities' but not others. But it's not impossible; they've repeatedly crafted many rules and standards to avoid slippery slopes over the years. But it seems that Roberts was unwilling to devise such a rule and felt instead that it was better to find that 'inactivity' was left outside the scope of the Commerce Clause altogether.
Thus, the individual mandate could not be justified by Congress's Commerce Clause power.
Taxing Power
As does Roberts in his opinion, I'll pause here to clarify one important element of constitutional law. In order for a law to be constitutional, it need only fall under one of Congress's enumerated powers. Just because the individual mandate was not a constitutional exercise of Congressional power under the Commerce Clause does not mean that the law is unconstitutional. And the Court should interpret the law as an exercise of whatever enumerated power allows it to stand as constitutional. After all, the individual mandate clearly did not fall under Congress's power 'To establish Post Offices and Post Roads', but that does not mean the law is unconstitutional. Having said that, we proceed.
The next argument of the government was that the individual mandate could be upheld as constitutional under Congress's tax power. Under Article I, Section 8, clause 1, Congress has the power 'To lay and collect Taxes'.
The taxing power has a long and convoluted history which is further complicated by the 16th Amendment (the Income Tax Amendment). It involves complicated legal distinctions between direct taxes and indirect taxes which are really not all that important to what I think is actually going on in the case.2 So I'll skip that bit and dive into the important bits. Basically all you need to know about that history is simply that Congress has a pretty comprehensive power to lay and collect taxes on just about anything.
In order to make the taxing power argument, the government asked the Court to view the individual mandate simply as a sort of a tax on people who do not carry a certain level of health insurance. Now, if you've been paying attention, you'll note that this is in conflict to what the government argued in the first section. There the government argued that it was not a tax, but was a regulation. If one did not comply with that regulation, a fine was assessed.
This is completely true, but doesn't really matter, legally speaking. Lawyers argue conflicting theories all the time before courts, something which you may already know if you watch enough legal dramas on TV. ('You should find the defendant guilty of murder in the first degree. But if you don't, you should find him guilty of murder in the second degree instead.') Doing so may make each individual argument appear weaker, but a court will not ignore a given argument just because it conflicts with other independent arguments.
Even so, the Court acknowledges that the law, as written, does not naturally read as a tax. It reads much more naturally as a legal requirement, and if one does not comply with that requirement, he is assessed a fine. 'An applicable individual shall...' And 'If a taxpayer . . . fails to meet the requirement . . . there is hereby imposed on the taxpayer a penalty'. Yes, the penalty is imposed on 'a taxpayer', but so are a lot of regulatory fines. Furthermore, when the law was originally debated in the public sphere, the President repeatedly argued that the individual mandate was 'absolutely not a tax increase'. Nevertheless, the Court reasons that if the individual mandate can 'fairly possibly' be interpreted as a tax, and if doing so saves the law from being ruled unconstitutional, it should be so interpreted.
In order to justify interpreting the individual mandate as a tax, the Court turns to a prior decision regarding the Child Labor Tax Law of 1919, which imposed a 'tax' on those who employed child labor (Bailey v. Drexel Furniture Co.). In that case, the law was determined not to truly be a tax for three reasons. First, the 'tax' was exceedingly heavy in relation to the infraction, which suggested it was a penalty. Second, the 'tax' was only assessed on those who knowingly committed the infraction, a requirement more typical of criminal penalties than of taxation. Third, the 'tax' was enforced by the Department of Labor, rather than a revenue-collecting agency, such as the IRS. Each of these criteria strongly suggested the 'tax' was not a tax after all, but a penalty for committing an illegal act.
The individual mandate fee meets none of those criteria, says the Court. It is not excessively burdensome, being less than the cost of health insurance; it is assessed whether someone knows he meets the criteria or not; and it is collected by the IRS along with the rest of one's income tax. Thus, the individual mandate can be interpreted as a tax. And this should not surprise us, the Court says, since there are all sorts of taxes that don't just raise revenue but also affect individual conduct. The obvious example is sin tax: taxes on cigarettes and alcohol. (In economic terms, this is called a Pigovian tax.)
Since the individual mandate can be interpreted as a tax, the final outcome of the case is settled. Congress was authorized by the Constitution to enact the individual mandate as part of its power 'To lay and collect Taxes'. The Court thus upholds the law as constitutional.
So to summarize, the law is constitutional not because the law regulates interstate commerce, but because it collects a tax.
Commentary
This is the part of the post where I give my opinion on what the Court decided in this case. You are completely free to disagree with anything I have to say from here on out. In fact, I welcome disagreement and discussion about the arguments I raise. Please feel free to discuss any of them with me in person or online. (Though I will note that I can only participate in an online discussion for so long before my brain explodes.)
Why Roberts?!
The first remark I want to make is something I mentioned above. Upon first hearing the news, I had no earthly idea why John Roberts was the deciding vote in favor of upholding the bill. If there's a single Supreme Court expert out there who correctly anticipated that one, I'd like to meet him and shake his hand.
First off, why am I so certain that Roberts was the deciding vote? It's pretty simple: Roberts was literally the middle ground between the two other groups of four justices each. There were four justices (Ginsburg, Breyer, Sotomayor, and Kagan) who signed on to a concurring opinion which argued that the law should be upheld as constitutional both as an exercise of the Commerce Clause and under the taxing power. There were likewise four justices (Scalia, Kennedy, Thomas, and Alito) who thought that the law could not be upheld under either power. Roberts was the only justice on the Court who thought that the law should be upheld under the taxing power but not under the Commerce Clause. Ironically, that opinion — which no one else shared — is going to be the opinion which is most read and referred to.
So why is it surprising that Roberts voted to uphold the bill? Roberts has mostly been considered a member of the conservative wing of the Court. (Personally, I don't think the justices can be so easily categorized as 'conservative' or 'liberal', but for argument's sake...) As Rehnquist's successor to the office of Chief Justice, Roberts has also been seen as Rehnquist's ideological successor, a New Federalist, dedicated to curbing the power of the federal government. The New Federalism movement was responsible, among many things, for the Lopez decision, which reined in an ever-expanding Commerce Clause.
So far, Roberts has been less zealous than Rehnquist in pursuing that New Federalist 'agenda'. As a consequence, he has been seen as more cautious than Rehnquist; as someone playing 'the long game' and taking advantage of his young age (only 57). That is, rather than curbing the power of the federal government in one fell swoop, experts have judged that that 'agenda' is one he will play out over a long career.
I have pored over the decision, trying to find some way in which this opinion jives with that biography. It simply doesn't. Opponents of the ACA will see it as upholding a violent power grab by the federal government, which would seem to fly in the face of a New Federalist agenda. And I can't even conceive of how this might play into the 'long game' theory. If Roberts is the sort of Chief Justice that he's been made out to be, this opinion would set back his supposed 'agenda' by quite a bit.
Rather, I think the book on Roberts needs to be rewritten. The hallmark of this case, to my reading, is a strong adherence to precedent. Any chance he gets, Roberts tries to ground his reasoning in past decisions in this opinion, reading them at face value, rather than spinning them to read how he would like. If you know the case law, it's very difficult to argue that he got the decision wrong, in that sense, even if you disagree with the precedent or with yesterday's decision.
I very much want to say that it's the sort of opinion that I would have expected Justice O'Connor to have written. (I'd actually be very interested to pick her brain about this case.) O'Connor was similarly something of an enigma during her time on the Court. She was early on pegged as a member of the emerging 'conservative wing', a supposed member of the New Federalists. But from time to time she could be found siding the Court's 'liberals', making her the swing vote in many close cases.
But a closer examination of O'Connor's opinions shows that she was not so much conservative in ideology as conservative in philosophy. That is to say, she was more interested in tradition and in prudential reform over time than she was in advancing a particular political ideology. She avoided decisions which would radically change legal doctrine and instead followed legal precedent when possible. I see the same thing in Roberts's opinion here.
So perhaps what experts have characterized as Roberts playing the long game is really just Roberts favoring incremental change to precedent. It seems Roberts isn't interested in advancing conservative politics but in maintaining prudence on the Court. Rather than characterizing Roberts's legal theory in terms of what he is driving towards, it should instead be understood as where he's working from. It's still difficult to say at this point, but it's something I hope to do in looking over his past opinions.
What Does The Decision Mean?
What the decision means in the near future is fairly simple. ACA is upheld and will proceed on schedule. There will likely still be challenges to the law, mostly in the form of religious freedom, related to the contraception/abortifacient controversy which has erupted in the past few months. But on the whole, if you supported the ACA, everything you were looking forward to will come to pass. On the other hand, if you opposed the ACA, everything you despised will also come to pass. And if you didn't know what to think about the ACA in the first place, well... that's an entirely different post. C'est la vie!3
The long term legal prognosis is a bit more difficult to determine. The Commerce Clause ruling is not terribly surprising and will not cause too many waves in the years to come. As I mentioned above, it was a case of first impression, meaning that the Court had never before addressed the issue of regulating 'inactivity' under the Commerce Clause. And it's unlikely that the government will anytime soon defend a law on those rejected grounds. So that won't have much of a tangible effect.
The effect of the taxing power ruling will easily have broader effects. Having just praised the decision for being well-reasoned, I'm afraid that Roberts's definition of what counts as a tax and what doesn't was sorely lacking. Lawyers and law professors will be wringing their hands for years to come, trying to parse the Chief Justice's words, trying to determine where that line lies. When is a penalty a tax, and when is it just a penalty?
There are two reasons why Roberts's reasoning here is so difficult. The first is because the opinion only judges the individual mandate by a negative definition. Referring to Drexel Roberts lists three things which a tax is not. Since the individual mandate is none of those things, he reasons, it might be a tax.
Ok. Problem. That's not how logic works. 'If A, then not B' (the formula in Drexel) does not imply 'If not A, then B'. For example, if I were to say 'If something is a mammal, then it is not a fish', that does not mean that 'If something is not a mammal, then it is a fish'. Proof: a bird.
Yet this is the logic that Roberts uses. Rather than giving a definition of what a tax is he fixates on three things it isn't, ignoring the possibility that there could be several other factors which invalidate something from being a tax. Contrary to his reasoning, he hasn't actually determined that the individual mandate is a tax.
But more aggravating is the fact that Roberts knows that he's not providing a satisfactory definition. In fact, to this he says, 'we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the "power to tax is not the power to destroy."' I don't think anyone was thinking that the power to tax was so complete that Congress could use it to destroy. But it would be useful to know how close to that line Congress can go. The question which every lawyer wants to know the answer to, in light of yesterday's decision, Roberts explicitly declines to answer.
In other words, we have no idea at this point whether the next 'penalty', 'fee', or 'fine' will be able to be characterized as a tax, or whether it will cross the line which Roberts declares is out there somewhere. Perhaps the next penalty for non-compliance will be deemed to be a tax. Perhaps not. We don't know. Keeping in mind the purpose of court opinions as forward-looking guides to informed decision-making, the opinion here fundamentally fails. Miserably so.
On the other hand, we do now know that commercial 'inactivity' can really only be effectively addressed by commerce through the channel of taxation. Thus, they cannot finely regulate such 'inactivity' in the same way they regulate the manufacture of meat or the trading of stocks.
So Why Do I Disagree?
So far I've explained why I think the opinion is very well grounded in existing law while also being deficient in a particularly important respect. But I've said nothing yet on whether I agree or disagree with Chief Justice Roberts. As I spoiled in the first few paragraphs, I happen to disagree. The short version of why I disagree:
The opinion carries our legal system further along the path away from principled process and form towards an ends-focused pragmatism.
Allow me to explain. The Anglo-American system of law is composed of two basic parts: substantive law and procedural law. Substantive law is the meat of law. It is the part of the law that makes murder illegal. It is the part that prescribes the penalty for murder. It is what distinguishes murder from manslaughter. Substantive law describes the rights and duties of individuals, groups, and institutions.
Procedural law is what determines how the substantive law is enforced and plays out. It determines how investigations are conducted, what happens in a court room, and how laws are made. Procedural law describes how the rights and duties are protected and enforced.
In many ways, procedural law can trump substantive law. For example, imagine a person is absolutely known, without any doubt whatsoever, to have committed murder and is convicted. But imagine that the trial does not comply with procedural law (perhaps there was jury tampering), the conviction may be invalidated.
Similarly, imagine that a genius politician has come up with a foolproof law which would eliminate poverty in America and to which everyone agrees. If the law is not enacted with the right procedure — passed by both houses of Congress and signed by the president — a court will not consider it a valid law and will not enforce it.
In each example, the application of the substantive law was clear and the ends which it would achieve were indisputably good. Taken alone, it would be good to convict the known murderer. Taken alone, it would be good to eliminate poverty. But because our legal system values the process as well, those good ends are not sufficient to overcome a deficiency in the process.
In past ages, procedural law was a much larger part of the law. One could almost say that legal battles were battles over process rather than over substance. The complicated writ system of England (and still used in American until the past century) was a complicated scheme of procedural law. Cases were almost won or lost based on which side made the least fatal procedural errors. That's a caricature, of course, but it's basically true. In recent decades, procedure has been significantly streamlined. But it's not gone entirely. And that's a good thing.
One of the reasons why process matters is because it guards against abuses of the substantive law. This value is rooted in the writings of William Blackstone, an 18th-century English legal scholar, who famously wrote, 'better that ten guilty persons escape than that one innocent suffer.' Process and form are the way our legal system ensures that protection to the citizenry. Even Old Testament Mosaic law had procedural law: 'A single witness shall not suffice against a person for any crime or for any wrong in connection with any offense that he has committed. Only on the evidence of two witnesses or of three witnesses shall a charge be established.' (Deut 19:15)
In essence, our legal system says that justice is not served if both the substantive and procedural aspects of law are satisfied. In reading yesterday's opinion, I see Roberts downplaying the importance of process and form and yielding to what he sees are defensibly good ends.
The reason why I say this is because Roberts fails to make a distinction that the minority makes, a distinction which is important in this substance/form dichotomy. Roberts looks at the individual mandate and decides that, even though the entire form of that law is non-tax, because its substance is like that of a tax, that's good enough to be a tax.
The minority, on the other hand, states, 'The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.' Though they appreciate the effort of Roberts and the majority to interpret the law in the best light possible, they quote another case to say, '[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .' And like the majority, I think that is what is being done.
Congress could have achieved the exact same effect as the individual mandate by raising everyone's taxes and then granting a rebate to those people who have health insurance. In terms of the ultimate effects, such a law would be almost no different from the law they did pass. But Congress didn't choose that form (probably because they didn't want to have to try to navigate the politics of passing a tax increase, a probability supported by the fact that the President and members of Congress repeatedly stated, during the debate over the bill, that the individual mandate was emphatically not a tax).
So the question I ask is whether it matters that Congress passed a bill whose language strongly suggested that it was a regulation-and-penalty, rather than a tax increase? Does it matter that they chose to pass a bill which was regulation-and-penalty, rather than a universal tax increase with widespread opportunity for a rebate? I argue that it does.
The minority gives one main reason for why it should matter: because it makes the Court into a judicial tax-writer. That is, it extends Congress's legislative powers to effectively regulate and penalize — to an unknown extent, since the tax/non-tax line is undefined — and leaves it to the courts to then declare it a tax in a last-ditch effort to save the bill. And the Court wisely does not want to be the unpopular branch which is now in the business of writing tax law. While I sympathize with this position — who does want to be the branch to raise taxes?? — I do not think it sufficient.
The distinction between these various options matters because our legal system values process. It is our principle that even if you get the 'right result', if you didn't get there along the 'right path', justice was not served. Process and form matters because it matters; not because it necessarily produces better results. It matters because it is a fundamental principle of the rule of law which the system is pledged to heed. Our legal system is a mix of pragmatism and principle, and process is a bedrock of its value of principle.
I could give a lot of reasons why I think we should continue to respect the importance of form and process, but ultimately what matters to me is whether we still are interested in the fundamental importance of form and process in our legal system. Or are we becoming a society where it is deemed good and just that an agreeable and 'right' result was achieved, even if one fudged his way in getting there?
I'm going to have to stop myself at this point, otherwise I'm liable to go on and on and on. I'll just conclude by restating this: I disagree with the decision of the Court. But unlike many conservatives, I don't disagree because I want to see ACA go down. I do happen to think it's a bad policy,4 but I think there's no way around the fact that Congress is perfectly able to achieve the effect it did — a fact which I don't think many conservatives properly recognize. I think Roberts realistically recognized this fact.
No, I disagree with Roberts's opinion because I think it sacrifices our legal values of process in order to get to the 'right result', ignoring the fact that the 'right path' was not taken. That, to me, is unjust. And I fear it is symbolic of a general trend in our legal system and perhaps even society at large.
1The government also argued that the individual mandate could be constitutional under the Necessary and Proper Clause. Since this is a less important argument, for the sake of space I have declined to address that. I'd be happy to discuss it with anyone individually, however.
2As with the Necessary and Proper Clause, I'll gladly discuss that history with anyone individually.
3A brief note: the Supreme Court, in upholding the law, was able to avoid the issue of severability. Severability is a principle which governs decisions when part of a law is struck down as unconstitutional. If the individual mandate had been struck down, the Court would have then had to ask, 'Is the mandate an integral part of the ACA, such that if it dies, the rest of the law is neutered and makes no sense? Or is it severable from the rest of the ACA, such that the rest of the ACA can still operate effectively?' If part of a law is found to be severable, then the rest of the law would stand, even while the unconstitutional portion is struck down. If it is not severable, then the entire law is struck down altogether. But as I said, since the law was upheld, the Court never needed to address this fact. One of the judges in the circuit courts, Judge Vinson, had ruled the individual mandate was unconstitutional and not severable from the rest of the ACA. His decision was obviously overturned by the Supreme Court's decision. The Supreme Court's dissenting minority, however, in finding the individual mandate unconstitutional, also found it non-severable: they would have struck down the entire ACA.
4Again, this is something I'd gladly discuss with anyone.
2As with the Necessary and Proper Clause, I'll gladly discuss that history with anyone individually.
3A brief note: the Supreme Court, in upholding the law, was able to avoid the issue of severability. Severability is a principle which governs decisions when part of a law is struck down as unconstitutional. If the individual mandate had been struck down, the Court would have then had to ask, 'Is the mandate an integral part of the ACA, such that if it dies, the rest of the law is neutered and makes no sense? Or is it severable from the rest of the ACA, such that the rest of the ACA can still operate effectively?' If part of a law is found to be severable, then the rest of the law would stand, even while the unconstitutional portion is struck down. If it is not severable, then the entire law is struck down altogether. But as I said, since the law was upheld, the Court never needed to address this fact. One of the judges in the circuit courts, Judge Vinson, had ruled the individual mandate was unconstitutional and not severable from the rest of the ACA. His decision was obviously overturned by the Supreme Court's decision. The Supreme Court's dissenting minority, however, in finding the individual mandate unconstitutional, also found it non-severable: they would have struck down the entire ACA.
4Again, this is something I'd gladly discuss with anyone.
1 comment:
This was super helpful in understanding the decision. Thanks, Steven!
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