If Roberts had to uphold Obamacare as constitutional (outlets are now reporting that he initially voted with the conservatives to overturn it, but that he later switched his vote which may have been influenced by outside forces), I think he did so in the most conservative way possible. He kept the Commerce Clause jurisprudence in check by rejecting the Government's expansive arguments, redefined Obamacare in politically-advantageous terms, and granted the States the ability to opt out. Moreover, his repeated emphasis on "federalism" - the states' retained ability to do things (the mandate, for example) under the police power which the feds cannot - lends further credibility to Romney's distinction and justification of the Romneycare mandate. Roberts also quelled attacks on the legitimacy of the Supreme Court by teaming up with the liberal justices and deprived the left of a campaign theme which they were already developing and banking on - that SCOTUS is nothing more than a dangerous majority of conservative politicians in black robes. Finally, this opinion may have breathed new life into the Tea Party, which was instrumental in producing a Republican majority in the House in 2010 and was spawned, in large part, by Obamacare's passage in the first place. In sum, Obama and his allies may have won the battle on Thursday, but the prospects for a conservative victory in the war were not dashed by the SCOTUS ruling, in my opinion. In fact, the prospects arguably improved.
Read on for specific opinion highlights and my reactions ...
1. Judicial Deference
"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."
- It's pretty clear what Roberts is saying here. If you dislike Obamacare, then vote accordingly in November. I also thought his word choice was interesting. It was strongly-worded: "thrown out of office," not just voted out. Also, implied in the last sentence is that the policies enacted by the people's elected leaders in 2008 (Obamacare) were such that the people needed to be protected from the consequences of those policies, i.e., the consequences will be negative and damaging to them. Though Roberts ultimately upheld Obamacare, subtle backhands at the law can be found throughout the majority opinion.
2. The Much-derided Broccoli Analogy Carries the Day - Commerce Clause Argument Rejected
"Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make [but doesn't] within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. ... [M]any Americans do not eat a balanced diet. ... The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. ... Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. ... That is not the country the Framers of our Constitution envisioned."
- Solid logic, which was famously ridiculed by the mainstream media and talking heads on the left after oral arguments. It was good to see that that Supreme Court reined in several decades of unrelenting Commerce Clause expansion, BUT ...
3. Individual Mandate Valid as a Tax
"The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."
- So what the feds can't do (compel you to engage in commerce via the individual madate) under the Commerce Clause, they can do if the mandate is reasonably construed as a tax? Isn't the practical effect - getting more people to buy health insurance - the same, as many on the right argue? So what difference does it make? Shouldn't we be concerned here? Doesn't this just unleash Congress's taxing power, as depicted in the cartoon? The majority provides 3 considerations to allay these concerns:
a. Unlike under the Commerce Clause, the Constitution does not make any promises to shield us from federal regulation via taxation as long as we do not engage in activity. Plus, Congress already uses tax incentives to encourage buying things (e.g. homes, professional educations) whereas SCOUTS has never sanctioned, under the Commerce Clause, the government's mandating of the unwilling citizenry to engage in commerce by purchasing products that the paternalistic government deems necessary.
b. If the Court decides that the mandate is a "tax," then that means that it is not punitive in nature (notwithstanding Congress's frequent use of the word "penalty" in the statute), which would be much worse and unconstitutional under the Taxing power. The outer limits of a "tax" are also policed aggressively by the Courts.
c. Government can exercise much more control over your behavior under the Commerce Clause than it can under the taxing power. In other words, "Congress may simply command individuals to do as it directs [under Commerce Clause regulations]. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the rightto bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in othercontroversies, such as custody or immigration disputes. By contrast, Congress’s authority under the taxingpower is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punishindividuals subject to it."
- I'm no tax attorney, but I'm not sure I buy this last distinction. Isn't it a federal felony to not pay income taxes (Wesley Snipes comes to mind)? If convicted for tax evasion, aren't you then branded a criminal and would thus suffer the same attendant consequences that Roberts lists above? The dissent may have something to say here, but I didn't get that far.
I would add a 4th consideration:
d. It is much more politically difficult to pass something that looks like a "mandate" if you have to call it a "tax" to ensure that is passes constitutional muster. That word is politically toxic, and politicians will avoid it if possible. Roberts' opinion just made it that much more difficult to do, and provided conservatives with good ammo to grow and solidify its majority of people who disapprove of Obamacare by allowing it to be labeled as such going forward.
4. Feds can't threaten to withdraw all Medicaid funding from States if they don't comply with Obamacare's Expansion
"When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. ... The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the Stateswith no real option but to acquiesce in the Medicaid expansion."
- This ruling (7-2, by the way) essentially allows the states to "opt out" of the Medicaid portion of Obamacare if they so desire.
I'm interested in your analysis of the decision and how it may affect things (health care system, upcoming election, etc.) going forward. Comment away!
Good rundown!
ReplyDeleteOn the crucial question - Tax or penalty? - I think there is a jurisprudential "sleeper" effect that will make taxes the new and wide-open frontier for the expansion of federal power. As noted in the majority opinion, federal taxes (and deductions, credits, and exemptions) are used as policy tools and the revenue-raising aspect is secondary or even non-existent (see Head of Household).
All these years the federalism focus has been on the commerce clause. If taxes are to define the new limits of federal power, it would be nice (as a conservative) to go back, wave the magic wand, and say to prior courts "Watch out! How about a rule that says revenue raising must be the primary purpose of any tax legislation, and if behavior is to be regulated there must be a commerce-clause rationale.
Just a thought.
I agree, and find persuasive the following op-ed explaining that once upon a time, the feds couldn't end run around the commerce clause by indirectly mandating things via taxation, which is arguably the effect of the ruling.
Deletehttp://www.nytimes.com/2012/06/29/opinion/a-confused-opinion.html
So as I see it, the key issue that distinguishes the Roberts majority from the conservative dissent is where they fall on this issue: is the so-called “mandate” provision really just a tax, or is it in fact a punishment? Basically Roberts adopts the former, the dissent the latter.
ReplyDeleteBefore I get into it I’d like to emphasize that there are valid reasons for both views: I think it largely comes down to a judgment call as to which arguments are ultimately convincing. That said, I’d now like to briefly discuss those differing arguments.
Although I’m willing to bet the vast majority of us were scratching our heads about how on earth this could really be considered a tax just like any other, I have to admit Roberts actually had some decent—at least logically valid, if not sound—arguments to justify that claim. His central claim is summed up by his quote “It seems unlikely that Congress intended to create 40 million outlaws” (or something along those lines). His point here is that although this looks like a punishment on its face, this alleged penalty was really intended to be more of a valid alternative for those who couldn’t afford or refused to buy coverage, since it supposedly costs less than the cheapest insurance plan. Thus, rather than trying to “punish” those who go without insurance, Congress was merely looking for a solution to the free-rider problem in health insurance. In other words the emphasis is on the fact that now everyone will have to contribute to the societal cost of healthcare, one way or another.
Let me repeat that although I consider that a valid consideration, I do not find it entirely persuasive. At first I wasn’t entirely sure why, I was just thinking “a tax, REEAAALLY?” In my gut it just seemed silly to treat this as merely a means of obtaining revenue to fund the bill. Luckily, though, I found some better responses when I read through the dissent (I had to dig for it, though, because it was in the third major section, treated almost like an afterthought), which I’ll try to briefly summarize:
So it turns out this isn’t the first time the lines have been blurred between a tax and a penalty, and as such the courts have developed a system of defining the two ideas so as to distinguish them: “[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.’ United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)).”
Although Roberts was of the view that the mandate in question didn’t render the refusal to buy insurance unlawful per se, there are some further considerations which the dissent points out which suggest that Roberts’ hard-line definition of a penalty isn’t broad enough: “When an act ‘adopt[s] the criteria of wrongdoing’ and then imposes a monetary penalty as the ‘principal consequence on those who transgress its standard,’ it creates a regulatory penalty, not a tax.” Child Labor Tax Case, 259 U.S. 20, 38 (1922). I think it’s clear that, if anything, the Obamacare mandate absolutely fits that criteria. And then, as if there were any question, the dissent further elaborates why it’s so absurd to call this thing a tax: “But we have never held.—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.” And then, here’s the kicker: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.” J. Kent, Commentaries on American Law 436 (1826).
This may not be the heaviest of penalties Congress could impose, i.e. criminal prosecutions & such, but that doesn’t mean it isn’t punitive at all in its very nature…
Here's a follow-up synopsis I found on a blog that highlights in a few blistering sentences everything that's wrong about this opinion! (http://www.chicagonow.com/windy-city-young-republicans/2012/06/supreme-court-obamacare-dissenters-nailed-it/):
ReplyDelete"Reading his opinion gave me the feeling that Roberts was mad that he was even in this controversial position. In a narky statement, he wrote 'it is not our job to protect the people from the consequence of their political choices.' It's as if he was saying 'You don't like this law? Take it up with the President and Congress, I don't have time for this.'
First the Legislative Branch violated our individual freedom of choice with the mandate. Then the Executive Branch concurred. We turned to the Judicial Branch as our last line of defense, and the Chief Justice looked back at us in disgust. He could have upheld our freedom. Instead, he chose to turn his back, protect himself and let us burn.
Perhaps the Chief Justice sent all Americans a message today: 'a people who would elect such an awful set of leaders who pass bad laws are not worthy of the freedoms they inherited.'
Yet it is Roberts who was put in power to help protect those freedoms. He did not and today, individual freedom's friends, as they so often are, were in the dissenting minority."
...I couldn't have said it better myself...
I hope enough concerned citizens take Roberts up on his offer and vote enough people into office who are committed to repealing the ACA. Everyone knows that the health care system is a disaster, but another monstrous federal entitlement that will drive insurers out of the market and premiums through the roof is no way to fix it.
DeleteThe challenge lies in coming up with a suitable alternative. That is where Republicans have their work cut out for them.