State of the Union

Obamacare Upheld — Should We Be Shocked?

John Roberts Is One Clever Dude

By Scott Galupo • June 28, 2012, 10:54 AM

What a morning!

First off, the D.C. Entrails Reading Award goes to David G. Savage of the Los Angeles Times, who to my knowledge is the only guy who got this thing right:

Lurking in the background is a way to decide the case on tax law grounds. No one can be prosecuted, punished or fined for violating the mandate. In fact, the word “mandate” does not appear in the law. In “practical operation,” the administration argued, it’s just a tax law.

If the mandate is really just a tax, that would be supported by the Constitution, which says Congress “shall have the power to lay and collect taxes … to provide for the common defense and general welfare.”

So, in the end, the justices could agree the law’s required tax payments are constitutional, while also making clear the government does not have broad power to mandate purchases.

As for the decision: Chief Justice John Roberts is one clever dude. It seems to me that by saying the Affordable Care Act is “not a valid exercise of the Commerce Clause,” Roberts has his limiting-principle cake. Yet by upholding the law via the tax code, he gets to eat it too.

On the merits, I think this is a reasonable way to read the law. At its most basic level, the “mandate” — do we still call it that? The word doesn’t appear in the law — empowers the Internal Revenue Service to collect new revenue.

What of President Obama’s vociferous denials throughout the health care debate that the mandate was not, in fact, a tax? Does the Court’s ruling otherwise create political trouble for the president? Perhaps it will — but, under the circumstances, my guess is it’s the rare kind of political trouble that he would welcome.

Posted in Courts, Healthcare, Politics. Tagged David G. Savage, John Roberts, Obamacare, Supreme Court.

17 Responses to John Roberts Is One Clever Dude

tbraton says:

June 28, 2012 at 11:21 am

I guess beauty is in the eye of the beholder (although we have already agreed on that point with regards to the svelte Gov. Christie). I have been listening to the Diane Rehm Show for the past hour and have almost thrown up hearing the liberal law professor Jeffrey Rosen praising the “courage” and “wisdom” of Chief Justice Roberts. I thought Chief Justice Roberts’ great goal was to avoid 5-4 decisions. I’m not sure how he accomplished that goal by joining the four liberals in a 5-4 decision upholding the individual mandate. I’m also having a hard time understanding how one can conclude that the individual mandate exceeds Congress’ authority to regulate “interstate commerce” under the Constitution but that the penalty for failing to follow the individual mandate falls within Congress’ authority to impose a tax. Seems like the wisdom of Solomon, with Roberts cutting the baby in half. Does this mean that Congress may impose a penalty on those who refuse to buy brocolli?
Jim Dooley says:

June 28, 2012 at 12:08 pm

“Does this mean that Congress may impose a penalty on those who refuse to buy brocolli?”

Good point.
Us pedestrian Americans outside the beltway like to think that the spirit of the constitution limits government from selecting out people to be taxed for not buying brocolli, while leaving the brocolli buyers alone. It looks to me like Roberts couldn’t stand the heat of being called political and somehow thought it preferable to be regarded as slick.
Wouldn’t have been my choice, but then I don’t think much of Washington rules. I think that as people try to digest this tax after it wasn’t a tax nonsense they will discover they are eating neither fish nor fowl but a bowl of rancid pudding, and Roberts’ reputation will have taken a big hit.
Steve in Ohio says:

June 28, 2012 at 12:35 pm

Between this and the pro Obama immigration decision, I have this sinking feeling that Roberts is “growing in office”. Why do Republican appointees often “grow” while Democrat appointees never ever surprise their backers after being sworn in (unless you go back 50 yrs to JFK’s choice of Byron White).
Aaron says:

June 28, 2012 at 12:37 pm

He’s a clever dude, yes – but perhaps too clever by half. When I started to read his opinion I understood why CNN reportedly blurted out that the mandate had been reversed. Roberts opens with a warm embrace of the “activity vs. inactivity” distinction, a doctrine created less than two years ago with the specific goal of taking down this piece of legislation. But after finding – needlessly, as it turns out – that the government cannot mandate the purchase of health insurance he recasts the mandate as a tax and gives it his blessing.

That is, he opens with a Commerce Clause analysis that embraces form over substance – his focus being not on whether an exercise of government power is constitutionally legitimate or illegitimate, but whether Congress has used the correct words in describing its valid exercise of power – then proceeds to uphold the very same exercise of power as a tax, holding that the fact that Congress didn’t describe the mandate as a tax is irrelevant and that the mandate is a valid exercise of its power to levy taxes.

I am not surprised that Roberts ended up in the majority, given that he picked himself to write the opinion. I can speculate about the structure of his decision – was he trying to bring Kennedy and possibly Alito on board by embracing the “activity / inactivity” distinction, even while upholding the mandate as a tax? I suspect so.

I would note in response to tbraton that we’re speaking of two different clauses, the Commerce Clause and the Tax and Spending Clause, and the constitutional analysis of the validity of a tax is very different from the analysis of the regulation of interstate commerce. I can understand why it’s difficult to appreciate the “it’s unconstitutional as a mandate – so let’s call it a tax-type of argument presented by the Court (or at least by Roberts, as the concurring justices did not join his Commerce Clause analysis).

When it comes to determining what legislation is or is not constitutional, Alexander Hamilton argued,

If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.

When the court focuses on form over substance – where its analysis of constitutionality turns not on whether Congress has acted within the scope of its authority, but instead turns upon its parsing of the words used by Congress in what the Court agrees to be a valid exercise of its powers – I think it distances itself from the type of review Hamilton describes. Hamilton’s approach would be less thrilling to court watchers, and probably less intellectually satisfying to members of the court, but we would likely end up with far fewer standards of review that put form over substance.
tbraton says:

June 28, 2012 at 12:44 pm

“I think that as people try to digest this tax after it wasn’t a tax nonsense they will discover they are eating neither fish nor fowl but a bowl of rancid pudding, and Roberts’ reputation will have taken a big hit.”

Jim Dooley, I agree. I earlier drew the analogy of Roberts emulating Solomon and then going ahead and cutting the baby in half, all the time thinking he was being wise. A better analogy may be that Roberts was seeking to emulate the great Chief Justice John Marshall in the famous case of Marbury v. Madison, where Marshall approved the Republican administration’s refusal to grant the appointment of Marbury while establishing the Supreme Court’s authority to rule on the constitutionality of Congressional laws by ruling the Judiciary Act of 1789 to be unconstitutional, thus establishing the Supreme Court’s authority to make final decisions when it came to what was constitional. If that was what Roberts thought he was doing, I think he totally miscalculated. Too clever by half.
Sharculese says:

June 28, 2012 at 1:11 pm

“I thought Chief Justice Roberts’ great goal was to avoid 5-4 decisions. I’m not sure how he accomplished that goal by joining the four liberals in a 5-4 decision upholding the individual mandate.”

What do you mean? If he had voted the other way, it still would have been a 5-4 decision, just the other way.

The ‘more unanimous court’ thing was always more of a high-minded aspiration than a judicial reality, anyway.
tbraton says:

June 28, 2012 at 1:56 pm

“What do you mean? If he had voted the other way, it still would have been a 5-4 decision, just the other way.”

My point exactly. I notice that his magnanimous gesture in joining the four liberals was not reciprocated by one of the four liberals joining his restrictive view on the “interstate commerce clause.” Liberals are only critical of 5-4 decisions when the result goes against their position.
Can you imagine the critical uproar in the MSM had Roberts joined his fellow conservatives in a 5-4 decision going the other way?
Matt says:

June 28, 2012 at 3:11 pm

Time for Congress to impose a tax on people who don’t buy American flags. Everything is Constitutional now!
gung hoe says:

June 28, 2012 at 3:19 pm

Wish the mandate was I Had to buy broccoli at least that wouldnt leave such a bad taste afterword!
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Mr. Patrick says:

June 28, 2012 at 3:47 pm

There are tax deductions and tax credits for paying health care costs, mortgage interest, investment interest, and child care. These are not news. If you don’t engage in those economic activities, you don’t receive relief for taxes due as you otherwise would.

How is a Congress-imposed capitation philosophically different, except that it doesn’t rely on the 16th Amendment, but the original body of the 1789 Articles for its mechanism of taxation?
TomB says:

June 28, 2012 at 4:01 pm

I think Aaron’s analysis above in perceiving there to be a “form/substance” split, is a really really smart one.

It isn’t so apparent to the naked eye—because as Aaron said there’s a different Const. analysis for assessing the govt’s powers under the CC clause and under its taxing power—but calling what Roberts did as elevating form over substance by relying on the latter is really a deep way of putting it.

In essence, I think, in exchange for not expanding the CC clause power he degraded the limits of the taxing power a bit, which is also difficult to tell given the mushiness that’s always accompanied what *its* limits were.

I suspect he feels this isn’t going to matter, and it may not. You could have a tax power case come around the curve tomorrow and he could go back to siding with the usual conservatives and find a million ways to say that no, he really hadn’t given the tax power any further oomph here.

And that might be the end of it.

On the other hand he may have just given the Left/liberals a huge idea, and a pathway: “Okay, what we can’t force on us via the Commerce Clause or any other substantive provision we sure can try now via citing Justice Roberts’ decision here!”

And it might well work. Roberts can stand on a stack of bibles and say he didn’t mean it that way, but I think it’s clear he has indeed given more leeway to the taxing power than it’s been accorded before, and that’s called precedent, man.

Great observation, Aaron.
Liam says:

June 28, 2012 at 4:42 pm

The problem with the Commerce Clause limiting principle is that it will lack the full weight of a proper precedent because CJ Roberts did not get his dissenting brethren to concur for the limited purpose of that part of his opinion. Had Scalia et al been more savvy, they would have concurred to that limited extent to give that part of the ruling full precedential weight.
tbraton says:

June 28, 2012 at 6:08 pm

Liam, that’s my problem with Chief Justice Roberts’ decision in this case, and why I concluded he was being too clever by half. (Ironically, Aaron used the same phrase in a message just 7minutes before mine but which had not been posted when I submitted my message.)

“Wish the mandate was I Had to buy broccoli at least that wouldnt leave such a bad taste afterword!”

gung hoe, now if Congress in its wisdom had decided to give a tax credit for purchases of brocolli, I probably would have no objection since I have been a large consumer of brocolli for many years. And, if the rest of you taxpayers would be forced to subsidize my brocolli purchases, tough luck.
TomB says:

June 28, 2012 at 7:10 pm

Liam/tbraton:

Roberts failing to get a majority saying that the CC power cannot authorize this at least doesn’t change the status quo ante. I.e., there’s still no majority that has ever said it can.

And even if he *had* gotten such a majority together, I’m not sure that wouldn’t be regarded as obiter dictum-like given that it wouldn’t have been crucial to the holding. Maybe not technically obiter dictum, but obiter dictum-like.

The way you guys have framed this here however is very interesting insofar as potentially being the way in which the taxing power may now be viewed as changed thanks to Roberts.

That is, precedent generally but clearly supported the basic idea that “you can tax what you can’t directly regulate, but only to raise revenue, so that you can’t tax what you can’t regulate in such a form, manner or degree as to effectively be regulating it.”

Well, as you guys observe, and resonating with Aaron’s foregoing great comments re form/function, Roberts’ decision might now well be might viewed as very much calling that into question.

That would be a biggie change in basic taxing doctrine, and might well be helped along by Roberts’ opinion.

And that’s no matter if Roberts denies that’s what he’s saying or not because, as you two observe, that sure can seem to exactly describe what his opinion does.

In short, it’s a mistake I think to believe that Roberts was so clever here as to get his cake and get to eat it too. Yes he didn’t let the Commerce Clause authorize anything further than it already does.

But like everything else in life, he paid a cost in doing so in terms of having to expand the taxing authority.

At least in this case: Of course one never knows if that expansion precedent is ever going to be be used in other cases.

For what it’s worth though, I suspect so. The more I think of it this little rabbit hole that Roberts thinks he slipped through is just too juicy for Congress and other judges to ignore in terms of authorizing ever more governmental power. Almost certainly not right away, but eventually I’d bet, there’s going to be attempts to drive semi-trailer trucks through that little rabbit hole. And Roberts’ opinion today is going to be cited as a flagman waving it through.
Carey Criden says:

July 4, 2012 at 3:33 pm

Mr. Galupo is one confused person. What Mr. Roberts did is now make it possible for Congress to pass anything–under the tax power.”If you do not buy a new anti climate change device, we will tax you” This is huge. Mr. Galupo is asleep at the wheel. The decision is a disaster. The fact that it slightly limits the commerce power is not significant. What is significant is that it greatly expands the tax power–the government can tax you for not doing something. More dictatorship. Charles Evans Hughes opened the door in the thirties in response to Roosevelt’s intimidation, and Roberts continues being intimidated by the left. Wake up Mr. Galupo. Roberts is not clever, he is intimidated by the left. It is not his job to be clever. It is his job to interpret the constitution.
Rich says:

November 8, 2012 at 3:48 pm

Explain again how this was so clever?