Full disclosure: I am totally opposed to the Affordable Care Act (aka, Obamacare). It is a well-intended but horribly executed law that harms patients, health care providers, and the economy (the job losses will be significant), and benefits no one other than insurance companies. The law has noble intent: to expand health coverage for more Americans. But the law is a ramshackle dunghill of poorly conceived ideas that lacks reason, coherence, and efficacy. It is a gross expansion of federal power with very little tangible benefit from said expansion. I completely support its repeal, and believe it is the single most important issue in the November elections.
Yet as bad as the law is and as much as I wanted to see the Supreme Court strike it down today, after reading the opinions (yes, I actually read them), I cannot disagree with Chief Justice John Roberts’ majority opinion in upholding the law. The reason I can’t disagree is based on understanding the role of the Court. The Supreme Court does not make law or policy – that is the job of Congress and the President. According to Article III of the Constitution, the Supreme Court rules in disputes about the interpretation of laws, treaties, and the Constitution. Part of that role includes Judicial Review: determining if a law passed by Congress is Constitutional. Thus the purpose of the Court’s decision today was not to decide if Obamacare is a wise, good, or effective law, but to determine if there is any way that it passes “Constitutional muster.”
The core issue of this case – and the reason 26 states sued to block the law – is the idea that a federal mandate to purchase insurance (or any product) is beyond the powers granted to Congress in the Constitution. The states argued that there is no legal right for Congress to force people to purchase something they may not want to purchase, and therefore is exercising a power it is not granted in the Constitution. The government (ie, President Obama’s lawyers) argued that the law is permissible because Article I, Section 8 of the Constitution expressly allows Congress to “regulate…commerce among the several states,” and to pass laws that are “necessary and proper” according the powers they are granted. Their case centered around the notion that everyone is a participant in the health care market, whether or not they have insurance, and therefore Congress can regulate that market and force people to purchase insurance. They also argued, secondarily, that if not a mandate then the law is effectively a tax, and Article I, Section 8 expressly allows taxation.
The states (ie, the law’s opponents) responded to these arguments by stating that the Commerce Clause allows only the regulation of commerce, not the creation of commerce. The core of their argument was that if Congress can regulate an “activity” that exists merely by virtue of being alive, then the government has truly limitless power. They also argued that the tax is really a penalty, not truly a tax, based on the wording of the law itself. What’s more, President Obama was emphatic that the new law was not a tax. In his now infamous interview with George Stephanopoulos, the President was unambiguous that Obamacare was not a tax. In an act of either flagrant hypocrisy or outright deceit, his lawyers argued that it was a tax while the President himself argued that it was not a tax!
In his well-written opinion, Chief Justice Roberts makes the compelling case that the states were mostly correct: Congress CANNOT mandate the purchase of a good or product. The Chief devotes almost the entire first half of his opinion to explaining this concept. He wisely points out that the Constitution does allow for the creation of certain things in Section 8 of Article I, but commerce is not one of them. So he agreed with the opponents of the law in that regard:
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. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.
I agree with this completely. Congress does not have the power to force people to purchase a good or service that they do not want to purchase. To allow such an action would give virtually limitless powers to Congress, as the Chief Justice implies. Likewise, the “Necessary and Proper” clause does not apply because such a mandate is not proper according the logic above. Thus the core argument of Obamacare’s proponents was eviscerated by the 5-4 majority opinion.
But it doesn’t end there. As Chief Justice Roberts noted – and as all the justices agreed – when the Court determines if a law is Constitutional, it must make every effort to read the law in a way so as to make it Constitutional. In other words, it should look for every way to uphold it, not strike it down. This is appropriate and correct: Congress makes and passes laws, the Courts rule on those laws. It would be wrong to try to find any way to overturn a law passed by the legislature – laws must be presumed to be Constitutional, unless there are glaring problems that cannot be resolved.
Yet despite acknowledging such glaring problems, the Chief Justice ultimately concluded that the law could be considered Constitutional – but only narrowly – as a tax. While acknowledging that the intent is to coerce people to purchase insurance, Chief Justice Roberts notes that the law essentially levies a tax against those without health insurance, and since Congress has the ability to levy taxes, this allows the law to stand. But again, he notes that Congress cannot mandate the purchase of a good, they can only collect the tax from individuals who do not purchase the good. Therefore it cannot be illegal not to purchase health insurance, but it can be illegal not to pay the tax.
The 4-justice minority – possibly at one point the majority – argues that interpreting the mandate as a tax is wrong because the law itself doesn’t consider it a tax, and wasn’t strongly argued as tax before the Court. As this portion of the dissent reads (likely authored by Justice Antonin Scalia):
The Government’s opening brief did not even address the question — perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners’ Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
In determining whether, in fact, the law imposes a “tax” or a “penalty,” he also says:
We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences of a penalty — such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States,supra.). But we have never — never — treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”
The Chief Justice answers this charge, however, by noting that at this point the main objection is simply over how the exaction is labeled:
The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels….Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Rather, it would give practical effect to the Legislature’s enactment. 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.
In other words, even if poorly “labeled,” the tax is still fundamentally a tax, does not force people to purchase insurance, and therefore is within the enumerated powers of the Constitution. So the law is upheld, but not for the reasons the President and his lawyers argued.
While I can certainly see the dissent’s argument – and it is a compelling one – I can’t really fault the Chief for his ruling. Remember, his job is not to determine if the law is good or if it was “sold” to the American people honestly, only to determine if it passes Constitutional muster by any means, and in his view it does. Furthermore, he drew a clear, bright line limiting the federal government’s power under the Commerce Clause. It is abundantly clear from his opinion that Congress cannot mandate people to purchase a good or service: in that sense the reality is that the “mandate” was struck down, but the law was able to stand. I’ve read some opponents of the law blast the Supreme Court ruling and the Chief’s opinion. While I would have been happy to see it go, I can’t find fault with this ruling.
As for President Obama, this will likely turn out to be the ultimate Pyrrhic victory. While his signature legislative accomplishment is allowed to stand, it is forever labeled a tax – something he vociferously denied on multiple occasions. Americans don’t like taxes, and in an election year it will be extremely difficult for the President to defend an already unpopular bill, especially now that it is undoubtedly a major tax increase. The Republican base will be extremely motivated, and many others (a clear national majority) who are opposed to the bill will see it as a major reason to not only vote for Mitt Romney (who has pledged to repeal the law entirely), but also Republican Congressmen as well. Furthermore, it takes away the core principle on which the law is based: that the government can force individuals to buy health insurance. That notion is gone. So now the President is left with an unpopular law that can only be viewed as a tax increase. It could be a classic case of winning the battle but losing the war.
The Supreme Court is my favorite part of government. Located in a shimmering white neoclassical building across from the Capitol, with an elegant chamber ringed with beautiful friezes, it projects an almost divine, or mystical aura. While the Court certainly makes bad mistakes (see Dred Scott vs. Sandford), in general it seeks to ensure justice. Nine wise individuals with impeccable knowledge of Constitutional law come to reasoned, thoughtful decisions. I like the formality, the reserve, the tradition, the lack of video coverage, the mysterious ways the Court reaches its decisions – it provides such a nice contrast to the bombast of Congress. Even if I do not always agree with the Supreme Court, I can always revere it.
In the end, as much as I detest the ACA, I can’t argue with the Supreme Court’s decision in light of the way they reached that decision. They clearly reinforced the concept of the enumerated powers and crystal clear limits on the power of government in the lives of its citizens. But rather than simply tossing out a bad law, they found a way to uphold it. Now it’s up to the people to determine the fate of Obamacare. Election day is just months away – the people will have the ultimate say on the fate of the law, which is just what the Founding Fathers had in mind.
M. MANDY SCRIPSIT