Chief Justice John Roberts shocked many Supreme Court watchers with his ruling on the Affordable Care Act.  While he agreed in principle with his fellow conservative justices on nearly every major constitutional question, he decided to leave the law in tact.  Roberts agreed with justices Scalia, Alito, Thomas, and Kennedy that Congress has no power to impose a health insurance mandate under the “Commerce Clause” or the “Necessary and Proper Clause,” and in doing so did not expand the reach of the “Commerce Clause” as the Obama Administration had hoped the Court would.  However, the Affordable Care Act, in Roberts’ mind, met the requirements to be a “tax,” which Congress does have the power to levy and collect.

Both when the president was selling his signature piece of legislation to the American people and in the bill itself, the mandate was made a “mandate-with-penalty,” not a “tax.”  If Obama tried to sell the mandate as a tax the legislation never would have passed and he would have reneged on his famous campaign promise to “not raise taxes on 95% of the population.”

Congress very much likes to levy taxes.  Additionally, Congress is fully within its power to establish taxes with the primary intention of incentivizing or disincentivizing certain behavior or the consumption of certain products, rather than simply as a source of revenue.  For example, Congress charges extra taxes on cigarettes and alcohol called “sin taxes” on top of the standard sales tax applied to every good sold.  That is perfectly constitutional.

What is troubling about the ruling is not that the Supreme Court exercised what it (re: Roberts) felt was judicial restraint by finding a way to not overturn federal legislation, it was that the majority had to change the language of the Affordable Care Act to do it.  In the bill the mandate is a “mandate-with-penalty”, not a “tax.”  If the mandate was written into law (and sold to the American people and Congress) as a tax, it would be constitutional.  Roberts felt it was a tax, which is why he voted to uphold nearly all of the law (other than the part of the bill that restructures Medicaid, which 7 justices agreed was unconstitutional).  Perhaps the most important part of the dissenting opinion in terms of refuting Roberts’ ruling is this:

“The provision challenged under the Constitution is either a penalty or else a tax. Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive. Thus, what the Government’s caption should have read was ‘ALTERNATIVELY, THE MINIMUM COVERAGE PROVISION IS NOT A MANDATE-WITH-PENALTY BUT A TAX.’ It is important to bear this in mind in evaluating the tax argument of the Government and of those who support it: The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. In answering that question we must, if ‘fairly possible,’ construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. (emphasis added) ‘[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it.’ In this case, there is simply no way, ‘without doing violence to the fair meaning of the words used,’ to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.”

In the past the Supreme Court has ruled that certain taxes have been set up in a manner that constitutes a penalty, but never has the Court ruled that a penalty for failure to follow the law constituted a tax.  According to the Court, “[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.”  An exaction for not following the law has never been deemed an exercise of Congress’s ability to tax by the Court, “even when the statute calls it a tax.”  The difference here is that the mandate is not even called a tax, but rather a penalty.

Roberts agreed that if the mandate is simply a mandate or a penalty, it is unconstitutional; but as a tax it is constitutional.  According to Georgetown law professor Lawrence Solum there is evidence that Roberts was leaning towards striking down the law until the final conference of the justices and he saw how the others were going to rule.

Curiously, most of those praising Roberts are not lauding the opinion he wrote, but the action he took – to side with the liberals to find a way to avoid ruling the legislation unconstitutional if possible.  Politically what this does is give Roberts and the Court cover for the future if it rules other laws unconstitutional, having now set the example that if he can, Roberts will find a way to let the legislature do its job and protect the separation of powers.  This ruling will also go a long way to dispel the image many have of the Court as overly partisan.

With confidence in the court waning over the past 12 years ever since Bush v. Gore and in light of more recent cases like Citizens United, Roberts desperately wants to reshape the image of the Court.  His personal philosophy calls for judicial restraint, and one cannot help but wonder if in this case Roberts “sacrificed” one case for the greater good of his vision for the Court and its credibility with the American people and the legal community.  After openly agreeing with justices Scalia, Alito, Roberts, and Kennedy on virtually everything regarding this case, to break new ground and redefine the difference between a “penalty” and a “tax” to uphold a law he otherwise would consider egregiously unconstitutional implies an ulterior motive.

In all fairness, his opinion kept the Court from expanding the reach of the “Commerce Clause” and it constrained what Congress can force the states to do by gutting the Medicaid portion of the ACA.  Additionally, the ruling keeps the issue alive for the November election.  From now on Obama will either have to admit that his signature piece of legislation was a tax increase or admit that he did not intend for it to be a tax increase and instead it was simply unconstitutional.

No one can know for sure, but Roberts’ ruling at least hints that his decision was more strategic than judicial.

Garrett Jacobs | University of North Carolina | @GarrettMJacobs