Raistlin

I made this a blog post instead of an EoEO thread because I doubt many of you care that much about the details.

Today, the Supreme Court issued a massive opinion upholding the Affordable Care Act, aka “Obamacare” (CNN’s hilarious screw up notwithstanding). I disagree with the decision, but in a somewhat surprising way. On a strictly constitutional level, I think Chief Justice Roberts’s opinion (which while not technically the Court’s opinion in all respects, ends up controlling all the results) is entirely correct: penalizing/taxing the uninsured is not a valid exercise of Congress’s commerce clause power, but Congress does have that power under its tax powers. But as I disagree that Congress invoked their tax powers in this case, I disagree that the ACA is constitutional.

The provision at issue was the so-called individual mandate provision, which demands that almost every US citizen “shall” retain health care by 2014 or face a “penalty” on their tax returns. The ACA has other provisions which explicitly create or mention taxes, and Congress deliberately used other language for the individual mandate. This was done because, as Congress and Obama repeatedly stated, the mandate was not a tax, but a penalty for noncompliance. They tried to distance the mandate as far as possible from a tax, because a majority in Congress would likely not have supported anything that could be spun as a “tax increase.”

And, in fact, the first part of the Court’s opinion explicitly concludes that the mandate is not a tax, by saying the Anti-Injunction Act does not bar the lawsuit. The old Anti-Injunction Act bars any suit challenging the legitimacy of a tax before the tax is collected. The only remedy for an unconstitutional or otherwise illegal tax is to sue after its collection for a refund. Therefore, if the mandate is a tax, suit to prevent its enforcement would be barred by the AIA. The Court easily dismissed this argument:

The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”

Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).

That seems entirely accurate to me. The main issue following that, then, is whether the mandate is a legitimate exercise of Congress’s power under the commerce clause of the Constitution. Roberts dealt with this issue with similar ease, finding that the mandate is an unprecedented and illegitimate expansion of those powers:

The individual mandate, however, does not regulate existing commercial activity. It instead 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 do¬main to congressional authority.

Again, I agree with this 100%. Which should have been the end of the matter.

But wait, there’s more! Basic constitutional interpretation generally requires courts to resolve any ambiguities in favor of upholding a statute as constitutional. Roberts and the majority twists this judicial guideline into the power to effectively rewrite the law in order to make it constitutional:

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.

Roberts goes on to conclude that the individual mandate can be reasonably read to create a tax. And so therefore the mandate is a tax, not a penalty. “But,” I can hear you asking, “wouldn’t that mean the Anti-Injunction Act would apply to bar the suit?” No, silly, that only applies when Congress intends a tax, and since the Court created this tax out of thin air, the AIA wouldn’t apply.

Don’t think about it too hard.

The dissent is justifiably critical of this analysis:

The phrase “independently authorized” 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. In all our cases the two are mutually exclusive. 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.

[…]

In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional. But we cannot rewrite the statute to be what it is not.

This goes beyond mere interpretation to judicial legislating, fixing Congress’s errors so it wouldn’t have to. Yes, Congress could constitutionally pass a tax on the uninsured. But the proper judicial remedy for its failure to do that is to strike the law down and let Congress pass a constitutional one.

Is today’s result the horrible, America-damning decision some conservatives are claiming it is? No. As far as I can tell, there would be exactly zero effective difference in applying the ACA if Congress had properly labeled the mandate as a tax (though of course that does not discredit any legitimate policy concerns with doing so at all). My only point is that if that’s what Congress wants to do, Congress has to actually do it. The Court should not step in and mangle the clear intent of the law (which the Court unhesitatingly accepted with regards to the AIA) in order to save Congress from its own politicking.