The Supreme Court: Giving with One Hand, Taking (and Taxing) with the Other

In the comments to a recent poll about what to expect from the U.S. Supreme Court's decision about Obamacare (aka the Affordable Care Act), an astute court-watcher noted that feelings on the Court seemed unexpectedly convivial, with none of the sniping and vented frustration that might be expected if Obamacare was to be overturned. That, together with Justice Roberts' known concern about divided and divisive decisions, led me to expect some kind of compromise. And that's what we got. In an attempt to avoid dividing the country, the Court -- in particular, Justice Roberts, the swing vote -- split the baby. In plain and resounding language, the Roberts opinion reaffirms our constitutional structure, with its federal government of limited powers, and explains how upholding Obamacare under the Commerce Clause would essentially dismantle that structure. Yet the opinion, with remarkable insouciance, authorizes Congress to overreach to the same extent under the taxing power.

First, Roberts summarizes the role of the federal government in our constitutional system:

In our federal system, the National Government pos­sesses only limited powers; the States and the people retain the remainder. . . . [R]ather than granting general authority to perform all the conceiv­able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers. . . . The Constitution’s express conferral of some powers makes clear that it does not grant others. . . . The same does not apply to the States, because the Con­stitution is not the source of their power. . . . The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of govern­ing, possessed by the States but not by the Federal Gov­ernment, as the “police power.”

Roberts then runs through the history of judicial interpretation of the Commerce Clause, the enumerated power allowing Congress to "regulate Commerce . . . among the several States." Over the last eighty years or so, this power has been interpreted so expansively as to allow Congress to regulate any activity with a "substantial effect" on interstate commerce, even if the activity took place entirely within one state, and even if it involved no direct commercial activity. In the most extreme example, the (to some) infamous Wickard v. Filburn case, the Court upheld a price control regime which penalized a farmer for growing wheat to feed his own livestock -- on the ground that by so doing, he reduced his need to buy wheat in the marketplace, conduct which could, if engaged in by many farmers, substantially affect interstate commerce in that commodity.

Where Obamacare breaks new ground is to require individual citizens who would rather not engage in commercial activity -- in this case, the purchase of health insurance policies -- to do so anyway, or pay a monetary penalty. The proponents of the law have argued that these people's inactivity had a sufficient effect on the health care marketplace that Congress had the power to force them into buying insurance they did not believe they needed. Their financial sacrifice would help to fund the elaborate scheme established by the statute, which would otherwise collapse in short order.

Roberts goes on at some length about the distinction between commercial activity, previously held subject to federal regulation, and the new frontier of commercial inactivity. In inspiring language, he draws a line and says, Thus Far and No Further.

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. . . . People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

That is not the country the Framers of our Constitution envisioned.

So is that the end of the individual mandate? Well, no. Because, in the service of what is often called "judicial conservatism," Justice Roberts casts about for a way to salvage this key provision of the statute, rather than invalidate an act of Congress. And he finds one. How? By defining Obamacare as exactly what its supporters earnestly claimed it was not: a tax.

Apparently, the Framers did envision a country where the federal government could tax countless decisions that citizens make, and compel them -- on pain of paying money they can ill afford --  "to act as the Government would have them act."

[T]he mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.

Well, Your Honor, as you explained so eloquently in connection with the Commerce Clause, inactivity -- choosing not to do something -- is a very different sort of "thing" than activity, e.g. buying gasoline or earning income. What happened to the Framers', the Constitution's, and Justice Roberts' concern for the fundamental framework of our system of government?

Roberts does get around to addressing this: 

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

 Yes, indeedy. (I initially used a more vulgar phrase referencing a certain famous detective, but deleted it out of respect for the office of Chief Justice.)

 Roberts goes on to list three "considerations" that "allay this concern." The first of these has at least a superficial appearance of  technical merit. Roberts notes that the Constitution allows a "capitation" tax -- a tax on every individual -- under certain circumstances relating to how it's apportioned, even though such a tax doesn't depend on activity, but merely on existence. Moreover, a number of federal taxes have been upheld even though their intent was not only to raise money, but to influence individual behavior. So a tax unrelated to activity, and intended to shape individual conduct, has some legal precedent. Today's decision arguably demonstrates that these previous cases "proved too much," providing the entré to essentially unlimited government coercion.

Roberts' second and third "considerations" involve the limited nature of this coercive power. He asserts that the tax is not sufficiently punitive and destructive to justify much concern, particularly since the statute provides that one may not be subjected to criminal prosecution for failure to pay it. I do not find this as reassuring as the Chief Justice, but opinions will vary.

Justices Scalia, Kennedy, Thomas and Alito filed an opinion agreeing with Roberts as to the Commerce Clause and disagreeing as to the taxing power. (There is some pretty plausible speculation that their opinion was initially the majority opinion, and that Roberts changed his vote.) I am less familiar with the case law on the taxing power than on the Commerce Clause, but Scalia et al. have what sound like solid rebuttals to Roberts' approach.

For example:

We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. . . . So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is.

(The opinion goes on to quote the relevant language, quite convincingly.)

Then there's this straightforward bit of textual analysis, to which I didn't notice Roberts responding:

That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax [i.e., the payment due if one doesn't buy insurance] who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate.

To Roberts' point that the penalty is to be collected by the I.R.S., the dissent responds: "The manner of collection could perhaps suggest a tax if IRS penalty-collection were unheard-of or rare. It is not."

Finally, perhaps my favorite line from Scalia's opinion, winner of Best Understatement of the Year: "Taxes have never been popular, see, e.g., Stamp Act of 1765. . . ."

I could go on -- there's much more to discuss, from Justice Thomas' short and cogent separate dissent to the majority's restriction on the statute's Medicaid provisions. But that's enough to set the stage. Now we'll see whether Congress will take advantage of the Court's permission to tax us into whatever the mood (or junk science) of the moment deems the most healthful and societally beneficial behavior -- and whether the voters will let them get away with it.