The individual mandate provision of the Affordable Care Act was upheld today. Chief Justice Roberts voted with the Court's more statist justices to find that Congress's tax-and-spend power provides authority for the individual mandate as a tax. It should come as no surprise that conservatives are not excited about the taxation power replacing the commerce clause as a magical do-what-you-want clause for our overlords in Washington.
The most absurd antics took place in the media over the past several weeks. Every liberal columnist tore his garments and bemoaned the loss of the Supreme Court's prestige because Roberts had besmirched it wtih his politicization, even lying about the rate of overturning laws. So I am sure they are all crying in their cheerios this morning because this illegitimate institution has issued yet another 5-4 ruling.
Below is my hasty breakdown of the opinion. It is not written for lawyers and I have only hastily cited.
I also have not addressed the concurrences or dissents. Scalia's opinion will provide the basis of a more thorough argument about the legal merits of this decision.
A Primer on our Federalist Constitution
The opinion begins by framing this in the context of the limited nature of the federal government, citing McCulloch for the proposition that the Court will from time to time have to determine the extent of this power, and Gibbons for the proposition that something unenumerated is ipso facto not a power.
The opinion rightly puts the Bill of Rights and “affirmative” protections in their place, in what we can only hope will be a move toward the primacy of the structure of the Constitution, and not the redundant after thoughts we call the Bill of Rights.
The task for the Court is to interpret the commerce clause and the taxation power in such a way that they do not swallow the enumerated federalism, even when accounting for necessary and proper.
Separation of Powers
The introduction moves in to what will appear to many to be “shop talk.” Roberts explains that the Court must defer to Congress on those matters Congress is competent to determine. He warns against confusing deference here, to what he calls policy, and deference in the law. This may be a return-shot at the partisan hackery aimed at trying to sway his decision.
I. Background – Majority Opinion (Roberts, Ginsburg, Breyer, Sotomayor, Kagan)
A brief history of the provisions in question. The Act requires “minimum essential” health insurance for most Americans, and explains the penalty tax incurred as a result of failing to do so. The penalty is assessed by and paid to the IRS.
Then comes the procedural history from the Eleventh, Sixth, and Fourth circuits. The Eleventh severed the mandate with surgical precision, a position neither party argued.
The second provision is the changes to Medicaid. Medicaid is basically a handout from the federal government to the states (where did the money come from in the first place?) with conditions as to how that money will be used. PPACA made several requirements more stringent. The chief argument here is that Congress is using its spending power coercively against the states. The Eleventh Circuit rejected this argument.
II. The Anti-Injunction Act – Majority Opinion
Briefly, the anti-injunction act deprives the court of jurisdiction for lawsuits challenging taxes until after the tax has been collected. A citizen must sue for a refund but cannot refuse to pay the tax. This is an old law and the general sentiment during oral argument was that the Court could easily overcome it if they wanted to hear it.
Curiously, the opinion here begins by declaring that Congress did not call this a tax. The intuitive tension is not lost on Chief Justice Roberts. He explains – reasonably – that Congress’s power on the question of jurisdiction is essentially a question of labeling. This part of the opinion devolves in to a treatment of the amicus exegesis of the PPACA’s penalty provisions. If Congress wants the anti-injunction act to apply, it can direct the courts to treat any revenue function as a tax. But it is not necessary to assume that they so intended here, and the majority is not persuaded.
III. The Merits
A. Commerce Clause – CJ only (since this is not binding precedent, I won’t spend much time on it)
Guaranteed issue and community rating do not purport to regulate commerce. In fact, they encourage people to stay out of the healthcare market. So Congress decided they had to rope everyone in to the system in order to make these provisions work.
Roberts first accepts challengers’ assertion that Congress cannot create commerce in order to regulate it. In the course of so doing, he responds to Ginbsurg’s polemics in two footnotes. In the first, he rejects her thin assertion that Congress mandates other kinds of action by pointing out that this power is not based in the commerce clause. In the second, he almost ridicules her for attempting to show that “regulate” meant “require action”, since to so establish requires looking at the 5th definition of “direct” which was the second definition of “regulate.”
Most annoyingly, in a non-binding part of the opinion, he takes on Wickard, the most flagrant abuse of commerce clause power in the last century. Instead of rejecting its logic, he simply says that the individual mandate would go one step too far. He addresses the analogy to food and transportation markets, and rejects the idea that healthcare’s ‘uniqueness’ provides a workable exception. He takes the analogy to an absurdity, declaring that even broccoli is purchased not for its own sake but to “cover the need for transportation and food.” 567 U.S. ___ (2012), p27 as published in PDF.
Next he addresses the necessary and proper clause argument. Encouragingly, but uselessly, the Chief Justice endorses the idea that the Court will almost always defer to Congress on necessity, but the Court will inquire more closely whether something is proper. Among other things, he does not buy that Congress can create one obligation just to make another thing necessary. He addresses Raich, which
B. Roberts braces for impact
This sets the stage for the opinion of the court, coming in C. Roberts basically apologizes in advance, explaining that if there is a constitutional reading of a statute, he is bound to accept that reading. In deference to Congress, the Supreme Court has long held as a principle of statutory interpretation the canon known as “Avoidance of a Constitutional Issue” and Roberts is telling us up front he is going to use that to uphold this thing.
C. The Opinion of the Court
At least he begins by explaining why calling it not-a-tax for anti-injunction act purposes doesn’t end the argument. According to the Court, there is a difference between Congress’s labeling and the Court’s inquiry as to what kind of Constitutional power is being deployed. He explains another case in which the suit against the Child Labor Tax was barred by the anti-injunction act but the tax itself was not a proper exercise of the tax power. Bailey v. Drexel Furniture Co. (U.S. Reports Title: Child Labor Tax Case), 259 U.S. 20 (1922). The opinion goes on at length explaining the Court’s tax-or-not jurisprudence. In the Drexel case, the Court looked at the high burden, the mens rea requirement, and the collection agency. The suggestion is that these are factors to be applied in the present case, and the Court concludes that PPACA penalty is more tax-like than the Drexel penalty.
In the course of this distinction, Roberts makes the remarkable declaration that “Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” Does this serve as a limiting principle? If this kind of use of the tax power only valid to the extent there is no stigma and the financial burden is not too high?
The fact that Congress expects millions of people to opt for the penalty bolsters the CJ’s proposition. Such an outcome would not be so lightly contemplated it if were intended to be a punishable act.
The opinion then addresses whether this is an disproportionate tax in violation of the Constitution. Citing taxes from the first Congress and more recent precedent, the Court discusses “Direct Tax” for some time before concluding that this is not a direct tax and thus not subject to the proportionality clause.
There is one paragraph here that is clearly the result of some politicking behind the scenes. Interestingly, the opinion reiterates here that “the Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.” But it does not go so far as to declare, with the full force of precedential value, that Congress may not do this sort of thing under commerce clause authority.
The opinion also says that there is in fact a limit to Congress’s taxing power. At the point a tax becomes a penalty, whenever that is, it will be subject to a different analysis, whatever that is.
Finally, the Court declares that the taxing authority is far less controlling of individual behavior than the general police power, including instances of commerce clause legislation. The individual may choose whether or not to perform the act, and is only faced with a financial consequence if he chooses to abstain.
D. Roberts Steadies his Boat
Here, the Chief Justice is writing only for himself again. Roberts speaks with great lucidity here. “The Federal Government does not have the power toorder people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose atax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
IV. Medicaid – Plurality (Roberts, Breyer, Kagan)
PPACA “dramatically increases obligations under Medicaid.” p51. Congress can condition funds under its Article I spending power. Use of this power is viewed like a contract. The states must have proper agency to enter in to it – they cannot be coerced or tricked, just like in contract law. The States argue that the Medicaid provision crosses the line to coercion, by threatening to withhold existing Medicaid funds.
After a lot of discussion of precedent and responding to Ginsburg’s opinion, the plurality agrees that the federal government acted inappropriately. The legislation amounted to a threat. Congress can implement its new conditions, but not in this manner.