For those of you who are scratching your heads regarding the
Obamacare decision, I’ll write this overview for you.
First, some proper names. While commonly called Obamacare,
the name you’ll normally see in the opinion is the Affordable Care Act. And the
case that the Supreme Court decided today is National Federation of Independent
Business v. Sebelius. You can read the opinion here.
Interestingly, at the time of this writing, the Supreme Court website still hasn’t put a formal link to the opinion up. I just happened upon it. (Makes me look forward to the efficiency of
government health care.)
Next, the lineup. Four justices--Ginsberg,
The striking case of Wickard v. Filburn, 317 U.S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity. (Scalia, dissenting, slip opinion at 2-3.)
On the other side of the lineup were Scalia, Kennedy
(surprisingly), Alito, and Thomas, who in the dissent uncategorically stated
that the ACA is unconstitutional in its entirety. (That’s the surprising thing
about Kennedy’s vote. Nothing swingy about that at all. Of course, dissenters
have the liberty to be expansive in their denunciations.)
Then there’s Chief Justice John Roberts. Let’s review for a
minute. Nominated by one of the most conservative presidents we’ve had in
living memory (George W. Bush), and one of the few judges in living memory to
come to the Supreme Court with a proven conservative track record, heartily
approved of by the Right. (Of course, we may define conservative in many ways,
including not only political positions but matters of judicial activism versus
judicial self-restraint.) Roberts wrote a separate opinion. In that opinion he
agreed with Scalia et al. on Commerce Clause grounds. But in the key to the
whole case, he found the individual mandate to pass constitutional muster on
the grounds that it was an Article I Section 8 tax. Since the four justices of
Ginsberg et al. also thought the act constitutional (though largely on
different grounds, i.e. the Commerce Power), they joined Roberts on the Tax
Power ruling, giving the ACA the magic five votes it needed to survive, in its
entirety.
I read in a couple of places immediately after this lineup
became clear that several people had foreseen this Roberts decision. Interesting that I heard no
hint of that prior to that instant. I think that this came as a shock to
everyone, friend and foe of ACA alike. It certainly shocked me, and so I read
Roberts’s opinion as soon as I got my hands on it.
So what’s my analysis of that opinion? Well, if you grant
the premise that this is a tax, then Roberts is on pretty solid ground that
under the Tax Power, Congress can do this. But that’s a big, and very
problematical “if,” and here's where Roberts’s opinion really falls apart.
Badly. It reads like something that Rehnquist would have written. I have read
some Rehnquist opinions in which a single crucial sentence would have me almost literally
banging my head against the wall trying to figure out what it means. There
comes a point when someone has to go out of his way to make a meaning obscure,
and Rehnquist was good at that.
Robert’s opinion isn’t quite like that. Instead, it’s just
self-contradictory. This is a big problem when you’re attempting to give
rational reasons (is that redundant? Apparently not for Roberts) for a
decision, which judges are supposed to do.
I’ll explain. There’s a law on the books from the 1860s called
the Anti-Injunction Act. In short, it says that a taxpayer can’t challenge the
constitutionality of a tax prospectively. He must wait until he actually has to
pay it. Thus, if the individual mandate is mandating a tax for non-insurance
buyers, but not for another couple of years, it cannot be challenged yet and the Court can’t give relief in this
case. So to hear and rule on this case, Roberts HAD to find that the mandate
doesn’t impose a tax.
The easiest way to do that is to find that what the
individual mandate does is to impose not a TAX, but a PENALTY, for failing to
buy insurance. That would mean that the Anti-Injunction Act isn’t applicable,
because that act speaks only to TAXES. So far so good.
The problem with finding that the individual mandate imposes a PENALTY is that Congress has no
constitutional power to impose PENALTIES. It may only impose TAXES. So if
Roberts declares the mandate to impose a PENALTY, the mandate clears the hurdle
of the Anti-Injunction Act only to die as an unconstitutional law that Congress
had no power to pass.
So what did Roberts do? He played word games, plain and
simple (if word games can be said to be plain and simple). He said that
Congress’s use of the term PENALTY to describe the mandate showed that it
didn’t intend the Anti-Injunction Act to apply, even though the so-called
PENALTY is actually a TAX. (I’ll call this the “What’s in a Name?” rationale.)
I'm not sure where he got the idea that by using the term "penalty," Congress meant to avoid applying the Anti-Injunction Act to the ACA. He just states in a throwaway line "It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense [WHY?] to be guided by Congress's choice of label on that question." (Slip opinion at 33). (Waitaminute! I thought that you were ignoring labels, Chief! Now all of a sudden a mere label is dispositive of the Anti-Injunction Act issue?!)
Then Roberts went on to cite and discuss (slip opinion at 33-35) the 1922 case of Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). In that case, Congress
imposed a what it called a TAX of 10% of a company’s income if the government
discovered that company to be employing children. In that case, the Court said
it doesn’t matter what you call it (and in that sense it, too, uses the “What’s
in a name?” rationale, which is why Roberts cited it. So far so good for Roberts.). If it forces people to
either do something or pay money, it’s a PENALTY. In the Drexel Court’s words:
Does this law impose a tax with only that incidental restraint and regulation which a tax must inevitably involve? Or does it regulate by the use of the so-called tax as a penalty? … If it were an excise on a commodity or other thing of value, we might not be permitted under previous decisions of this court to infer solely from its heavy burden that the act intends a prohibition, instead of a tax. But this act is more. It provides a heavy exaction for a departure from a detailed and specified course of conduct in business. …Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. Such is the case in the law before us.
(259 U.S. at 37.) The place where Roberts screws up is that the Drexel Court,
which he quotes with approval for his “What’s in a name?” approach, finds that
the TAX is really a PENALTY. BUT the ACA meets the Drexel Court’s definition of
PENALTY. And Congress can’t impose PENALTIES. So under Drexel, the individual
mandate should be ruled unconstitutional.
Thus Roberts distorts, and cheats with, the Drexel decision by refusing to note that it compels exactly the opposite conclusion that he reaches. (Of course, that's not so. The Drexel case means exactly what Roberts says it means, since his is the rationale that counts. As Warren Burger once told my father, "We're (i.e., the Supremes) always right.")
Thus Roberts distorts, and cheats with, the Drexel decision by refusing to note that it compels exactly the opposite conclusion that he reaches. (Of course, that's not so. The Drexel case means exactly what Roberts says it means, since his is the rationale that counts. As Warren Burger once told my father, "We're (i.e., the Supremes) always right.")
So of course Roberts disagrees with my characterization. He
notes that the Drexel Court cited three things that convinced it that the
Drexel TAX was actually a PENALTY. 1) It involved a bigger tax (or is it
penalty?) than the mandate does. 2) It required actual knowledge of violation. 3) The Department of
Labor, and not the Treasury, was in charge of enforcement, so it obviously couldn’t
be a tax. But there are tons of problems here. The biggest is that under
Drexel, these things didn’t make the TAX a PENALTY: they were only evidence that the TAX was a PENALTY. (Again, Roberts would and does disagree with that statement.) The crucial thing for the Drexel Court was that the
tax/penalty’s purpose was to make companies do something, just like in the mandate. To quote the Drexel
Court (my italics): “In the light of these features of
the act, a court must be blind not to see that the so-called tax is imposed
to stop the employment of children within the age limits prescribed.”
Scalia et al. pick up on this, and
are far more logical than Roberts. (Scalia always writes good logical opinions,
in my view, even when I don’t like the outcome.) In answer to Robert’s “It’s
only a little penalty and so it’s OK” rationale, Scalia blows him away. “[W]e
have never held—never—that a penalty imposed for violation of the law was so
trivial as to be in effect a tax. 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.” (Slip opinion at 19.) The dissent also notes that strict
knowledge isn’t a requirement for a PENALTY, and that PENALTIES are often
imposed for strict-liability offenses. (Slip opinion at 24.) (Frankly, Scalia should have provided some examples here, but he provides none at all.) As for the Drexel
Court’s observation that the penalty/tax was collected by Labor and not
Treasury, Scalia hoists Roberts with his own structural petard. The individual
mandate’s PENALTY, Scalia points out, isn’t found in the ACA’s revenue
provisions (Title IX), but in the core section of Title I.
In short, Roberts has engaged in a
self-serving interpretation and mischaracterization of Drexel, talking too much
about the Drexel trees and ignoring the Drexel forest. My guess is that he
wanted to go down in history as the man who gave us national health care, and
he was willing to engage in sloppy reasoning to do it. In doing so, he’s done a
disservice to both the Court and the Constitution; he’s also chosen a path that
is certain to enrage conservatives to the point of apoplexy.
This is not a good
decision. This law was a perversion of the democratic process from the
beginning. The Democrats shut the Republicans completely out of the process;
there was no bipartisan support at all, which makes it unique among major
social welfare legislation in this country, and perhaps all major legislation.
In the end it passed only through the operations of rules mechanics, when the
election of Scott Brown restored the filibuster to the Republicans. It’s being
used as the basis for an HHS regulation that is blatantly unconstitutionalunder the First Amendment and RFRA, and it will redistribute health care in
this country to a uniformly low level. It’s a tragedy that the final chapter to
this lamentable path to passage would consist of such bad legal reasoning.
Upholding it on Commerce Clause grounds would have been more constitutionally
damaging, but more coherent. And, given Obama’s blatant refusal to order the
enforcement of federal laws he doesn’t like, such as DOMA and immigrant
deportation laws, Democrats will have no room for objection when a Republican
President simply refuses to enforce Obamacare.
