I still have to read Ginsburg’s opinion and the Scalia opinion’s rabid concurrence with Roberts on the broccoli horrible, but I’ve read everything Roberts and Scalia et al. had to say about the taxing power in NFIB v Sebelius (aka “the Obamacare case”). I have changed my mind.
The case appears to boil down to two conflicting canons of interpretation.
On the one hand: the presumption of constitutionality, expressed by Justice Joe Story thus in 1830: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” The Affordable Care Act’s individual mandate is presumed constitutional, and every effort must be made to “save” it from being struck down.
On the other hand: the principle that, where statutory interpretation is demanded, the construction should be adopted that is most clearly based on “first, a natural reading of the full text; second, the common-law meaning of the statutory terms; and finally, consideration of the statutory and legislative history for guidance” (U.S. v. Medshares, paraphrasing U.S. v. Wells (1997)). The most natural reading of the Affordable Care Act (aka Obamacare) is that the individual insurance mandate is a regulatory penalty, not a tax. If it is a regulatory penalty, it exceeds the limits of the Commerce Clause, and the law is unconstitutional.
This is not much of a battle. The canon that should always win this fight is the presumption of constitutionality. The exercise of judicial review to overturn a law for violating the Constitution should always be an extreme last resort, lest the judiciary assume the responsibilities of a legislature. Everyone recognizes this. It is at the heart of the conservative critique of judicial activism. The Court’s conservatives agree with it in their dissent.
Roberts’ argument is relatively simple, and relies entirely on the presumption of constitutionality: the mandate is most naturally read as a regulatory penalty, and, as such, it is unconstitutional. However, since we, the Court, are required by our oath to bend over backwards to find a reading of the law that is compatible with the Constitution, I will abandon the most natural reading and proceed to the far less likely interpretation, that Congress actually (knowingly or not) passed this law as a tax. Although this interpretation makes fools and liars out of much of Congress and the White House, and although it is quite clear that the mandate was not intended as a tax, not one word of the law prevents the mandate from construed as a tax. It functions as a tax; it can be interpreted as a tax; taxes like this one are constitutional. Law upheld.
The conservative dissenters try to fight back against the canon of presumption by stating that the mandate cannot be construed as a tax. They accuse Chief Justice Roberts of “perverting the purpose of [the] statute… or judicially rewriting it.” However, after making the statement, they never make an argument to support it. Scalia et al. do build an overwhelming case that the most “natural reading” of the statute would interpret it as a regulatory penalty, not a tax — but the Chief Justice readily agreed to this observation early in his opinions. The dissenters never go on to demonstrate why the mandate cannot be construed as a tax. In my opinion, they do not even seriously address the point. They choose instead to mock the Obama Administration’s tax-power reading as unnatural and dishonest. The Administration’s case has both characteristics, but, again, both have already been conceded by the Chief Justice. Although they deny it at the outset, in practice, the dissenters sacrifice the principle of judicial restraint to a lesser canon of statutory construction. This is an error.
In my non-lawyerly opinion, Chief Justice Roberts ruled correctly in this case, and he is the sole member of the Court to have done so. The mandate is not justified under the Commerce Clause, notwithstanding Ginsburg’s dissent and the legal “experts” who have occupied our cultural commanding heights. But I am persuaded that it is “fairly possible” to construe the mandate as a tax. As such, the law is constitutional. In my opinion, this understanding of the taxing power conforms well with an originalist interpretation of the Constitution, and Mr. Justice Story, no doubt one of the two or three best judges in our nation’s history, makes that case ably, refuting James Madison’s more conservative position, in his Commentaries on the Constitution (starting at Section 904).
It is imperative that the Affordable Care Act be repealed, because it is an unwise and unjust piece of legislation. Portions of it, moreover, remain unconstitutional (especially the provisions requiring the violation of conscience by employers and insurance providers). However, with respect to the individual purchase mandate, Obamacare does not violate the Constitution. Thank you to Chief Justice Roberts for helping me see that.
As an aside, those who argue that this was a pragmatic or strategic move by Justice Roberts may as well argue that Thomas Aquinas was being pragmatic when he argued against the Immaculate Conception. It is completely unevidenced speculation that defies everything we know about Justice Roberts and finds no basis whatsoever in his opinion today. This is emphatically not another example of a Supreme Court betraying principle and justice for venality’s sake, as happened in Casey twenty years ago today (read the link; it’s by the indispensable M. S. Paulsen). I was very grateful to Matthew Franck more making this same point in this morning’s NRO.