Obamacare: Chief Justice Roberts's political dodge.

• Author: Hoff, John S.
• Position: Barack Obama, John Roberts and the Patient Protection and Affordable Care Act of 2010 - Essay

Chief Justice John Roberts surprised practically everyone by supplying the swing vote to uphold the constitutionality of the requirement in the Patient Protection and Affordable Care Act of 2010 (PPACA or Obamacare) that Americans buy health insurance. (1) The reasoning of his decision is equally surprising. He resorted to semantic gamesmanship and suspect logic to find the law constitutional. The artifice of his opinion confirms that he was driven by a desire to reach a result, however suspect the reasoning, that he thought would protect both the Supreme Court and himself from charges of political partisanship.

Roberts's decision is the latest in a series of rule-bending steps that have been taken to enact and then defend PPACA. The Democratic leadership in Congress entered into tawdry deals and employed procedural shortcuts to ram PPACA through in 2010. The president talked out of both sides of his mouth to push passage of the mandate and then to argue for it in the courts. The Supreme Court has bent the law and defied logic for its own political purposes. Congress, the president, the Court, and much of the punditocracy are complicit in stretching the boundaries of the political and legal systems to impose PPACA on America.

Table Setting

PPACA requires most Americans to "ensure" that they have insurance coverage that meets federal standards. Failure to comply with this mandate triggers a "shared responsibility payment"--what the law calls a "penalty." In 2016, the penalty will be the greater of 2.5 percent of household income, or $2,085 for a family (but in no case more than the cost of the insurance they should have bought) (26 U.S.C. [section] 5000A, added by PPACA [section] 150 l(b)).

Congress explicitly bottomed its enactment of the mandate on its authority under the Constitution to regulate interstate commerce. It invoked only this authority; it did not pretend to be acting under its constitutional power to impose taxes (PPACA [section]1501(a)). President Obama specifically assured Americans that the penalty was not a tax: requiring people to "take responsibility to get health insurance is absolutely not a tax increase.... Nobody considers that a tax increase," the president stated. "I absolutely reject [the] notion [that it is a tax increase]" (qtd. in Klingefeld 2009). It was well understood at the time that Congress would not have passed PPACA if the mandate were a tax--hence, the president's strong renunciation. Sanitized of any suggestion of a tax, the bill passed.

Obamacare bureaucratizes and politicizes the health care system. It gives the government broad authority to control the health insurance and health care delivery systems. It entails massive government spending, lighting the fuse on a fiscal time bomb. Broadly speaking, however, these elements do not make it unconstitutional, just unpopular. A majority of Americans opposed the law at the time of enactment, and despite its advocates' hope that it would become popular as people had a chance to read and understand it, most Americans' attitude has remained approximately the same ("Health Care Law" 2013). The 2010 congressional elections demonstrated public opposition to the new law, but critics did not have the votes in Congress to repeal it (and President Obama would have vetoed any repeal).

The mandate, however, raised constitutional questions. The Commerce Clause of the Constitution authorizes Congress to regulate interstate commerce (Art. I, sec. 8, cl. 3). However, the mandate, in requiring people to engage in commerce rather than merely regulating existing commerce, appeared to exceed that authority. PPACA's supporters defended it as a lynchpin of the law. A court judgment that it was unconstitutional would deal a political and psychological blow to the law and impede its implementation. Further, there was a possibility that if the mandate were found unconstitutional, the entire law would be invalidated. Opponents, therefore, challenged the mandate's constitutionality (as well as other provisions of PPACA) in the courts.

The administration defended the mandate as a permitted regulation of interstate commerce on the ground that even if individuals are not engaged in commerce at the moment, they would be when they sought health care. Over the past seventy-five years, after switching its jurisprudence in 1937 to uphold New Deal legislation, the Supreme Court has broadly interpreted the scope of the Commerce Clause. (2) There is, however, a line the Court has not crossed: all the cases in which it upheld a provision under the Commerce Clause involved regulation of ongoing commerce; the Court had never found it constitutional for Congress to require an individual to engage in commerce.

The administration also argued, as a backup, that if the mandate is not authorized under the Commerce Clause, the penalty it imposes for failing to have the required insurance is nonetheless constitutional as an exercise of Congress's authority to levy taxes (Art. 1, Sec. 8, el. 1). Even though the president had assured Americans that the mandate was "absolutely not" a tax, and Congress had asserted authority only as a regulation of commerce, the administration showed no embarrassment in arguing in court that the mandate actually is a tax.

Supreme Court Upholds the Mandate

On June 28, 2012, the Court issued its decision upholding, by a vote of five to four, the constitutionality of the mandate, but not on the ground on which the administration had mainly argued. Roberts wrote an opinion saying that the mandate is not authorized by the Commerce Clause (132 S. Ct. 2577 et seq.); the four other "conservative" justices wrote their own opinion to the same effect (at 2642 et seq.) but did not join his opinion. (3) Roberts wrote that the mandate "compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. 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" (at 2587, emphasis in original). It "would give Congress ... license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal government" (at 2589). Thus noting the absence of any limiting principle if the Commerce Clause were interpreted to permit regulation of a nonactivity, Roberts pointed out that this would permit Congress to impose "a mandatory purchase to solve almost any problem" (at 2588)--for instance, by requiring the purchase of vegetables, including the iconic broccoli. The four "liberal" justices believed that the Commerce Clause permitted Congress to impose the mandate as a regulation of commerce and so dissented (at 2609 et. seq.).

Five members of the Court thus refused to expand the interpretation of the Commerce Clause to include regulation of inactivity. Their combined opinions did not roll back or restrict the current interpretation of what can be regulated by Congress under that authority.

Finding the mandate unconstitutional under the Commerce Clause, however, did not end Roberts's analysis. He turned to the administration's claim that the mandate payment is constitutional as a tax. He found--and the four "liberal" justices concurred--that it can be upheld on this ground. The four "conservative" justices dissented.

To take what Congress explicitly said was a penalty and find that it is a constitutionally permitted tax required logical twisting and semantic stretching, as described below under italicized headings that summarize the strands of Roberts's argument.

Roberts's Tortuous Reasoning

The mandate is not a tax under the Anti-Injunction Act (AIA).

Roberts first had to deal with the AIA (26 U.S.C. [section]7421). To protect the flow of government tax revenues, the AIA stipulates that a federal tax ordinarily can be challenged only after it is paid; the taxpayer has to seek a refund and go to court if the refund is denied. A challenge to the mandate would thus be premature if the AIA applied; the mandate penalties do not kick in until 2014.

Congress, Roberts recognized, acted under the Commerce Clause in imposing the mandate and penalty. Relying on the statutory text (at 2582), he acknowledged that Congress's intent was clear and that the law was a regulatory exercise with a penalty for noncompliance; he rejected the argument that it was a tax for purposes of determining whether the AIA applied. This rejection cleared the way for the Court to consider the mandate's constitutionality.

But the mandate is a tax for constitutional purposes.

Statutory language, Roberts observed, sometimes can have more than one possible meaning. Under the Court's long-standing jurisprudence, if there is a reasonable interpretation of a statute that would prevent it from being unconstitutional, the Court should adopt that interpretation. On that basis, Roberts found it sufficient that it was "fairly possible" that the mandate could be interpreted to be a tax and as such constitute a valid exercise of Congress's taxing authority, even if this was not "the most natural interpretation" (at 2593-94).

But the statutory language imposing the mandate and the penalty for noncompliance is not subject to multiple interpretations. The statute is clear: as Roberts recognized in determining that the AIA did not bar suit, Congress acted under the Commerce Clause and...