[ed. See also: A Confused Opinion, NY Times]
The Supreme Court closed out its 2011–12 term today in dramatic fashion, upholding the Affordable Care Act by a sharply divided vote. The Court’s bottom line, reasoning and lineup of justices all came as a shock to many. While I had earlier cautioned doomsayers that the law was “not dead yet” after an oral argument that others deemed disastrous for the law’s defenders, I don’t think anyone predicted that the law would be upheld without the support of Justice Anthony Kennedy, almost always the Court’s crucial swing vote. And while most of the legal debate focused on Congress’s power under the Commerce Clause, the Court ultimately upheld the law as an exercise of the taxing power—even though President Obama famously claimed that the law was not a tax. The most surprising thing of all, though, is that in the end, this ultraconservative Court decided the case, much as it did in many other cases this term, by siding with the liberals.
Justice Kennedy, on whom virtually all hope for a decision upholding the law rested, voted with Antonin Scalia, Samuel Alito and Clarence Thomas. They would have invalidated all 900 pages of the law—even though the challengers had directly attacked only two of the law’s hundreds of provisions. But Chief Justice John Roberts sided with Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan to uphold the law as a valid exercise of Congress’s power to tax.
The Individual Mandate As a Tax
What led Roberts to cast his lot with the law’s supporters? The argument that the taxing power supported the individual mandate was a strong one. The mandate provides that those who can afford to buy healthcare insurance must do so, but the only consequence of not doing so is the payment of a tax penalty. The Constitution gives Congress broad power to raise taxes “for the general welfare,” which means Congress need not point to some other enumerated power to justify a tax. (By contrast, if Congress seeks to regulate conduct by imposing criminal or civil sanctions, it must point to one of the Constitution’s affirmative grants of power—such as the Commerce Clause, the immigration power, or the power to raise and regulate the military.)
The law’s challengers—and the Court’s dissenters—rejected the characterization of the law as a tax. They noted that it was labeled a “penalty,” not a tax; that it was designed to encourage people to buy health insurance, not to raise revenue; and that Obama himself had rejected claims that the law was a tax when it was being considered by Congress. But Roberts said the question is a functional one, not a matter of labels. Because the law in fact would raise revenue, imposed no sanction other than a tax and was calculated and collected by the IRS as part of the income tax, the Court treated it as a tax and upheld the law.
Chief Justice Roberts did go on to say (for himself, but not for the Court’s majority) that he thought the law was not justified by the Commerce Clause or the Necessary and Proper Clause, because rather than regulating existing economic activity it compelled people to enter into commerce. When one adds the dissenting justices, there were five votes on the Court for this restrictive view of the Commerce Clause. But that is not binding, because the law was upheld on other grounds. And while some have termed this a major restriction on Commerce Clause power, it is not clear that it will have significant impact going forward, as the individual mandate was the first and only time in over 200 years that Congress had in fact sought to compel people to engage in commerce. It’s just not a common way of regulating, so the fact that five justices think it’s an unconstitutional way of regulating is not likely to have much real-world significance.
by David Cole, The Nation | Read more:
AP Photo/Dana Verkouteren
