Yesterday, the Supreme Court upheld the controversial individual mandate of the Patient Protection and Affordable Care Act. Chief Justice Roberts authored the majority opinion, affirming in part and revering in part the decision of the lower court, siding with the four more liberal justices in a 5-4 decision.
The Court held that the individual mandate stood constitutional scrutiny under Congress’ taxing power. In what sometimes seems like an ongoing joke, the Court stated that the penalty that is imposed on those citizens who fail to comply with purchasing the minimum level of health insurance required by the law is actually a tax, not a penalty, therefore falling under the purview of Congress’ taxing power.
You’ll remember during oral argument the discussion of whether the penalty is a tax or not (both sides carefully using these terms to cosset their own argument. It’s a tax! It’s a penalty! It was designed to be a tax, but we’re calling it a penalty! Who’s on first?)
Though conservatives are obviously upset at the ruling (and surprised to see the Chief Justice rather than Justice Kennedy siding with the Court’s liberal wing), they shouldn’t be too disconcerted, as today’s ruling offers a few silver linings.
Firstly, both Chief Justice Roberts in the majority opinion and Justices Scalia, Kennedy, Thomas, and Alito in their joint dissent laid down the hurt on the most heinous of the government’s arguments – the power of the federal government to compel citizens to buy a product because of its effect on interstate commerce, also known as the Commerce Clause argument. Had this argument survived, it would have provided a misguided Court and a power-hungry Congress with further precedent validating their intrusion into basically every aspect of our lives under the guise of “regulating commerce.”
Chief Justice Roberts explained in the majority opinion that of course Congress may not regulate something that does not yet exist (alluding to the inactivity of not buying health insurance): “If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to ‘coin Money,’ in addition to the power to ‘regulate the Value thereof’ … The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.”
Further making the point: “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.”
Obviously the dissenting four justices agreed with the Court’s understanding of the limitations of the Commerce Clause. Once again, this is a good thing. This is not Wickard v. Filburn 2.0; the Court is affectively telling Congress that if they want to satisfy their insatiable desire to involve themselves in every aspect of our lives, they may not hide their perversion under the appearance of economic regulation. They are going to have to do it the old-fashioned way: threaten to tax us to death if we don’t live the way they think we should.
Though this is an incredibly wicked way of thinking, it is much better than the alternative of further expanding Congress’ right to regulate everything by calling it interstate commerce. I also believe this gives conservatives a tool almost as good as if the law had been decided as unconstitutional in the first place.
More on this in a bit. But I think the minority’s critique of Chief Justice Robert’s reasoning in allowing the penalty to fly as a tax deserves some attention.
The majority argued that the Anti-Injunction Act, barring court challenges to a tax law until after the tax has been collected (read more on that here), did not apply here because Congress did not write the bill with the intent to tax those who were not compliant (after all, the purpose of a tax is to collect revenue to help the government achieve something, not to penalize law breakers), but instead created a penalty as punishment. However, in the same opinion, Roberts also uses the argument that the penalty is a tax and allowable under Congress’ taxing power.
The minority argued that a word can’t serve two masters, stating that the Court’s reasoning “suggests the existence of a creature never hitherto seen in the United States Reports: A penalty for constitutional purposes that is also a tax for constitutional purposes.”
Obviously the power of Congress to tax is not in question, only if it intended to do so. Because the law will not work without everyone contributing their – dare I say? – fair share, Congress inserted a provision that would punish those who don’t purchase health insurance, dubbing it the Obama-esque “shared responsibility payment.”
That’s not a tax say Scalia, Kennedy, Thomas, and Alito. “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 litigation itself as a penalty.” The minority makes a strict constructionalist argument, which makes Robert’s rejection of it quite odd.
“So the question is, quite simply, whether the exaction here is imposed for violation of the law,” the dissent poses, “It unquestionably is.” Roberts obviously did not see it that way.
The Sleeping Giant
The implications here are more than just legal. Politically, conservatives have been given a current to ride all the way to November. In 2010, the Tea Party defined the national discussion, driven by a repudiation of big government solutions to big government problems.
The Tea Party smashed the establishment’s monopoly on right-wing politics, and more importantly sent Democrats packing in droves. The American people sent a message that they do not want socialized medicine, constitutional or not.
However, now that Obama’s healthcare plan has stood constitutional scrutiny, we have an even easier job. There will be no bickering of whether or not the law’s constitutional, leaving ample room to campaign on what the American people have already told us: Hell no to price controls! Hell no to rationing! Hell no to European-style failure!
The Supreme Court is not the enemy this go-around. They didn’t write this law, and they weren’t doing any favors to the administration by branding the word “TAX” on its cover.
Dust off your Gadsden flags, patriots. We’ve got a government to take back.