Thursday, June 28, 2012

"Individual Mandate Survives as a Tax"

The headline jumped off the live blog and you could hear the cyber *gasp* from the nearly 1 million viewers getting the first hand news of the most anticipated Supreme Court decision in decades. A few posts later, the even more shocking news came to light. The swing vote in the 5-4 majority was not Anthony Kennedy, as most expected, but George W Bush appointee Chief Justice John Roberts. Immediately on the open thread at, the Roberts bashing began. "John Roberts sucks", "Roberts is now a bigger scoundrel than Souter", "Another Bush Justice lets Conservatives down and moves left", "Roberts stabs Constitution in the back", "Roberts you socialist scumbag", "Drop dead, Roberts", "Roberts can kiss my a**", "Roberts is a red", and many more unrepeatable comments were spewed out by the downcast and disillusioned conservative community. But is this a correct judgement of the Chief Justice and his opinion? I'm not so sure.

In fact, John Roberts may be sly as a fox.

The more I think about it, the more I think this decision actually accomplishes several things for conservatives.

1. The Commerce Clause power is checked. Both the Robert’s opinion and the dissent state clearly that there must be positive commercial activity before the Commerce Clause can be invoked. This was the argument against the mandate all along – that it regulated inactivity, not activity. The ruling basically affirms that argument and should preclude the Federal Government from successfully enacting any more such mandates.

2. The left cannot use the “court is illegitimate and political” argument now. That will bode well for decisions down the line. I really think that Roberts knew that a 5-4 decision against the law would seriously damage the court’s credibility, at least with the left half of the country (which includes the media and academia). If he couldn’t get at least 6 votes against the law, he was bound and determined to side for the law but write a very narrow opinion that wouldn’t hurt the cause of liberty or do violence to the Constitution. He actually, in a way, succeeded on that front even though this will be viewed generally as a setback.

3. Roberts has basically called Obama a bold faced liar for promising no taxes in the 2008 campaign. The breaking of the “No new taxes” pledge by Bush senior is what doomed his reelection bid and it may very well doom Obama’s too. If this is a “win” for Obama, it is a pyrrhic one. 

4. The decision will energize conservatives and independents to turn out and vote for Romney in the upcoming election as they will see repeal as the only way to get rid of this very unpopular law. While I don’t think that is the only alternative left (see next point), it matters not if it causes another Republican tsunami in November.

5. The decision now opens the door to challenge the tax as illegal. There are many flaws in the “mandate penalty as a tax” argument and I suspect the law suits are already being written to overturn it on those grounds. And since the court also declared that the tax could be challenged before the tax takes effect, we don’t have to wait 2 years before those law suits can be filed. So Roberts basically “kicked the can down the road” a little ways, but so be it. In the end, he may have provided even a more solid basis for challenging the law.

(update) 6. As many commentators are pointing out, the shift of the mandate to a tax makes the entire law that much easier to repeal or at least gut. Tax votes in the Senate require only a 51% simple majority, and are therefore filibuster proof. Now only the Presidency and a pick up of 4 Senate seats by the Republicans is needed to send ObamaCare to the trash heap of history.

The bottom line is that this decision may have doomed Obama’s reelection and doesn’t ultimately protect the law. Pretty clever...if it turns out that way. Only (more) time will tell.

UPDATE - Some pertinent quotes from the Chief Justice's opinion:

The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous.

The proposition that Congress may dictate the conduct of an individual today because of prophesied future activity finds no support in our precedent.

The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

No matter how “inherently integrated” health insurance and health care consumption may be, they are not the same thing: They involve different transactions, entered into at different times, with different providers. And for most of those targeted by the mandate, significant health care needs will be years, or even decades, away.

The text of a statute can sometimes have more than one possible meaning...And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.

Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one.

The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.

...taxes that seek to influence conduct are nothing new.

Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can.

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.