June 28, 2012
This morning, the Supreme Court finally issued its long-awaited ruling on the Patient Protection and Affordable Care Act (ACA).
Whether you were delighted or outraged by the opinion, you nonetheless should be a bit surprised.
Because the individual mandate was upheld as an exercise of Congress’s taxing power, not its Commerce Clause power.
And that’s surprising because the arguments from both sides only focused about 10% of their attention on the individual mandate as a tax.
The opinion is very long and very complex, but I’ll try to summarize as best I can.
First, on the individual mandate.
Chief Justice Roberts wrote for the majority (also consisting of Justices Kagan, Sotomayor, Ginsburg, and Breyer) that the individual mandate is constitutional as a tax.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That…means the mandate can be regarded as establishing a condition – not owning health insurance – that triggers a tax – the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income [emphasis added].
Conversely, the four dissenters (Justices Kennedy, Scalia, Thomas, and Alito) said that the individual mandate should be struck down because it extends well beyond any congressional powers found in the Constitution.
In addition, the dissent found that the individual mandate and the Medicaid expansion (which it also found unconstitutional, but more on that later) were not severable from the rest of the ACA, so the entire Act should be invalidated.
Here is where things get messy, though.
The Chief Justice broke with the four liberals by holding that the mandate was not within Congress’s Commerce Clause power:
Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. 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.
Normally, when the rest of a Court majority doesn’t join in on a holding in the opinion, it’s not controlling precedent.
However, since the four dissenters ruled the same way as the Chief Justice on the mandate and the Commerce Clause (and, less importantly, the Necessary and Proper clause), Roberts’ holding will likely be viewed as controlling.
What does that mean?
We can only speculate.
Whether Roberts realized it or not, even though he said that Congress can’t regulate inactivity through the Commerce Clause, he basically said that Congress could regulate inactivity through its Taxing and Spending Clause powers.
To me, that seems analogous to saying that you’re allowed to eat macaroni and cheese with a dinner fork, but not a salad fork.
And Roberts was far more permissive with Congress’s taxing power than the government was asking the Court to be in its Commerce Clause arguments.
Specifically, the government argued that Congress could force individuals to participate in the health care market, but not other markets (such as food and clothing) because of its special nature.
In his taxing power interpretation, Roberts imposed no such limitations.
In fact, he brushed off the penalty of the mandate as “just another thing the Government taxes.”
Given this reasoning, I predict that the constitutional power that Congress most often invokes to justify passing any social welfare legislation will shift from the Commerce Clause to the Taxing and Spending Clause.
Does this mean that Congress will be more limited in the social welfare programs that it can pass?
Possibly, but I highly doubt it.
Taxation is a powerful motivator, and Roberts just declared open season on using it to achieve any ends that Congress wishes.
So, while Roberts may believe that he scored a small victory for the conservative cause by shrinking congressional authority under the Commerce Clause, he caused a much larger setback for it by sanctioning an even more powerful congressional tool of regulation.
More on the health care decision (specifically in regards to the Medicaid expansion and the Anti-Injunction Act) later today!