writes at National Review Online:
In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.
The Supreme Court took Sebelius in order to consider two important federalism questions. In one issue, not relevant here, Obamacare opponents challenged provisions expanding state requirements in relation to Medicaid. What is relevant here is that they also challenged the “individual mandate,” codified in 26 U.S.C. § 5000A. This provision imposes what the statute calls a “requirement” (effective 2014) that every U.S. citizen purchase adequate health-care coverage; anyone who fails to do so will incur what the statute calls a “penalty” of $750 (subject to inflation adjustments and exemptions).
The Court upheld the individual mandate. In a concurring opinion written by Justice Ginsburg, the Court’s four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) made clear they would have preferred to uphold the mandate as an exercise of Congress’s powers to regulate interstate commerce. The Court’s conservative wing (in this case, Justices Scalia, Kennedy, Thomas, and Alito) dissented. They also treated the mandate as a commercial regulation, but they argued that the mandate exceeds the scope of Congress’s powers, both under the Commerce Clause and under the Necessary and Proper Clause.
Chief Justice Roberts delivered the judgment of the Court — and surprised many by upholding the mandate. Roberts (correctly) agreed with the dissenters that the mandate “cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’” After all, Congress does not really “regulate Commerce” as Article I requires when (in Roberts’s words) it “forces individuals into commerce precisely because they elected to refrain from commercial activity.” That reasoning should have led Roberts to find the mandate unconstitutional. Indeed, by some accounts, he did initially vote to hold the mandate unconstitutional. After the initial vote, however, he switched sides and wrote an opinion upholding the mandate as a constitutional exercise of Congress’s powers to tax.
To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.
Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.