Thursday, June 28, 2012

Supreme Court Does the Unexpected

The Supreme Court has ruled, 5-4, that the individual health care mandate passes constitutional muster as a tax, even though it is invalid under the Commerce Clause:
Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.
In other words, if you don't want to follow the mandate, you pay the tax (penalty/fine ... whatever). Chief Justice Roberts sided with the liberals in upholding it as a tax, and joined the conservatives in finding that it violated the Commerce Clause, and could not be sustained under the Necessary and Proper Clause. (That is actually a big win, because it puts a limit on Congress' ability to enact future social welfare laws by resorting to those enumerated powers.)

At the same time, the conservatives (again with the Chief Justice) managed indirectly to limit the application of, but not invalidate entirely, the Medicaid provisions. Justices Ginsburg and Sotomayor would have upheld the Medicaid provisions just as Congress wrote them, including the discretion granted to the Secretary of Health and Human Services to withhold "all or any part" of a State's Medicaid reimbursements unless it provided the expanded coverages that Congress added through the Act. Chief Justice Roberts, joined by Justices Breyer and Kagan, viewed the grant of this discretion as too coercive, and hence unconstitutional:
Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.
The four dissenters agreed, but regarded the rest of the Medicaid provisions as non-severable, while the Chief Justice and Justices Breyer and Kagan found they could be severed. For the dissenters, accordingly, the invalidity of the discretion granted to the Secretary meant the invalidity of all of the Medicaid expansion provisions. This would have left the rest of the Medicaid provisions in limbo, with four voting to strike them down in toto, two voting to uphold them as constitutional in their entirety, and three holding that although they were partly  unconstitutional, the remedy was to sever the constitutional parts from the parts that were unconstitutional. By concurring in part IV-B of the Chief Justice's opinion (agreeing to keep the rest of the Medicaid provisions intact by severing them), therefore, Justices Ginsburg and Sotomayor produced five votes in favor of the remedy of severance. In the process, however, the Chief Justice, the four conservatives and two liberals (Breyer and Kagan) constituted seven votes in holding that Congress had gone too far in providing the Secretary with such coercive powers. And that, dear readers, is an instance of the politics of the Supreme Court in action.

[UPDATE 06/28/2012: For one of the most interesting reads yet on the constitutional politics that could lie behind the unique position taken by Chief Justice Roberts in this case, I recommend this article by Prof. Joshua Hawley, one of Roberts' former law clerks. And just for fun, then read this interpretation of the same opinion by Prof. Laurence Tribe, who taught John Roberts constitutional law when he was a student at Harvard Law School.]

The joint dissent by Justices Scalia, Kennedy, Thomas and Alito reads for the most part as though it had initially been drafted as the majority's opinion. Time and again it refers to Justice Ginsburg's opinion as "The Dissent", and it responds to the arguments of "the Federal Government" (i.e., the Obama administration, through its Solicitor General), instead of to the Chief Justice specifically. The parts which do question the Chief Justice's opinion seem to have been inserted afterward.

Could this mean that there was an original majority consisting of the four dissenters plus the Chief Justice who were in favor of striking down the entire Act? And that at some point, the Chief Justice became persuaded that the Act could be upheld as an exercise of the taxing power? We will probably have to wait a long time to find out, when the Chief Justice eventually writes his memoirs.

Bottom line: we are stuck with Obamacare largely as passed. The vote of Chief Justice Roberts saved most of the Act, 5-4, and limited (by the same margin, 5-4) the one part of the Act he did not like. He voted with the four liberals to uphold the mandate, and also to keep the Medicaid provisions of the Act while limiting the conditions that Congress can attach to its funding.

The one major problem I see with the majority's ruling has not been addressed: the issue of forcing people to enter into contracts under duress. If you have to enter into a contract or else pay a fine, then there is an excellent argument that any such forced contract is involuntary, and hence voidable.

The other inconsistency I see is between part III-C and part IV-A of Chief Justice Roberts' opinion. In brief, he regards it all right for Congress, under its taxing power, to coerce private citizens into buying insurance by threat of a penalty for not doing so (part III-C), but as improper for Congress, under its spending power, to try to coerce the States into providing the expanded coverages it enacted for certain groups. He manages this feat by calling the first instance an "incentive," while terming the second instance "a gun to the head."  I find this distinction constitutionally unpersuasive.

[Note: I have, after carefully studying the opinions, revised my earlier account of the voting on the Medicaid provisions, which had been based on first impressions gleaned from the live SCOTUSblog.  I believe the above account now presents a more accurate reading of the positions of the Justices.]


  1. If the "mandate" had been worded so that instead of requiring a person to enter into a contract or pay a tax, it had required a person to either pay a tax for health care, or prove he had made arrangements to pay for X level of health care, and then defined such proof as "show you have the money or show you have insurance," would that have avoided the problems you mention?

  2. My initial reaction is (a not unanticipated) dismay. Albeit that is based on only the most preliminary understanding of the actual nature of the decision, based on one report in the MSM. My initial response to the argument that the fine is a "tax" is that such an interpretation means anything the Congress and President thinks should be mandatory is then Constitutional and we can all be coerced into buying it or be bankrupted. There is only one word I am aware of for such a system—tyranny!

    The U.S. has now been an independent nation for almost 236 years. And now, if Aristotle et alii were correct we can see the unmistakable advance of ochlocracy against democracy. The signs have been there for almost half of those 236 years, but the rate of advance of the former seems to have accelerated more and more in the past half century.

    And, if I am not incorrect, given the Chief Justice's complicity in this abomination, so much for the argument that we must vote for an establishment Republican in order to have maintain a Supreme Court that will stand guard on our liberties.

    The U.S. has been, in many ways, a hopeful experiment, but there is now not insubstantial reason to believe that the results will not much longer live up to their promise.

    Pax et bonum,
    Keith Töpfer

  3. VB, yes, that version would have avoided the compulsory contract problem. Good suggestion -- pass it to your Congressman/woman.

    MA, the Court (that is, the CJ) makes an interesting distinction about when a law is an exercise of the taxing power for purposes of the constitution, and when it is a "tax" for purposes of the Anti-Injunction Act. In short, if Congress labels it a "tax", then it is a tax for purposes of the AIA. But if it calls it something else (e.g., a "penalty"), then it is not subject to the AIA, but it still may be regarded as a tax for constitutional purposes. See this article for more explanation.

    We are headed for uncharted waters, at least as far as this country is concerned. The masses have gotten what they wanted, but the question remains: how can we all afford it?

  4. Mr. Haley,

    Thank you for your response. I agree with your "uncharted waters" statement. To your comment that "the masses have gotten what they wanted," I would offer two amendments, to wit:

    • The masses believe they have gotten what they wanted. But, with so many details yet to be determined, especially those that will be determined by economic realities, that which has been promised may not be that which is delivered.

    • The masses will be revolting, all that remains to be seen is which sense of "revolting" will dominate.

    Pax et bonum,
    Keith Töpfer

  5. I am curious about one aspect of this decision. If the "law" was enacted as an authorization under the Commerce clause of the Constitution, why did the SCOTUS not offer a judgment on this ground alone (striking the law down) rather than offering a work around (a tax definition)?

    It seems to me, a lay person, it was the responsibility of the law's authors to cite the authority and not that of the court.

    If Roberts' position offers some advantage to the conservative cause, what might that be?

    Daniel (aka Fisherman)

  6. Daniel, Chief Justice Roberts answered your question at p. 32 of his opinion (bottom), as follows: "As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below."

    Courts are required to try to find, if a reasonable one exists, an interpretation of a statute that will keep it from being found unconstitutional. Thus the party defending a statute will often cite more than one ground for its constitutionality, as did the Solicitor General in this case.

    The Court simply rejected his Commerce Clause ground, but accepted his argument that the mandate was a valid exercise of Congress' power to tax.

    The opinion of the Chief Justice does offer a number of victories to conservatives -- see the discussion here.