The Repudiation of the “National Problems Clause”: A Counterfactual Way of Appreciating What We Gained in the Lawsuit

The other evening, my daughter made a very astute point about why the lawsuit challenging Obamacare was largely successful:  Imagine that Congress enacted the “Individual Responsibility Requirement” and called the penalty for noncompliance a “tax.”   What would have happened?  I think I know. Although I believe this would have been in conflict with tax law cases, which did not permit taxing inactivity, I strongly suspect that lower courts would have turned away all challenges to this “tax.”  In other words, I believe they would have adopted something like the Balkin view of the tax power and upheld the Act.   If this had happened:

  1. The Supreme Court would likely have denied cert on all these challenges, or might well have granted cert and affirmed;
  2. There would never have been a 5-Justice ruling on the Commerce Clause and Necessary and Proper Clause affirming that these clauses have limits; that that these limits are judicially enforceable; that these clauses do not justify compelling economic activity; and that they do not together comprise the “National Problems Clause” that lawprofs have been teaching is the upshot of post-New Deal Commerce Clause cases;
  3. There might have been worse law (albeit at the Circuit Court level) on the tax power — as it would have allowed punitive tax mandates — than we actually got from the Roberts opinion distinguishing taxes from penalties; and
  4. We would not have kept the Affordable Care Act in constitutional and legitimacy limbo for over 2 years, allowing the political process to gear up to achieve its repeal; by now it would be a done deal and untouchable politically.

In short, as Pam Karlan, Neil Katyal and others on the left have realized, we who favor the judicial recognition and enforcement of the limits of enumerated powers are way ahead of where we would be if the law had been enacted in exactly the same form as it was upheld today, and even had it included a tax penalty rather than the “pure” tax that was upheld as constitutional.

UPDATE:  I want to stress that when I say “largely successful” I was speaking only for the effect it had on constitutional law, not the effect it had on Obamacare itself.  Of course, our objective was to defeat Obamacare and in that objective we were not nearly as successful as we hope we would be.  We succeeded only in slightly weakening the “mandate” by giving Americans by eliminating any moral obligation to buy obey a legal requirement to buy health insurance, and by preventing HHS from conditioning receipt of existing Medicaid funding on greatly expanding Medicaid coverage, and essentially transforming the system.  Whether this is enough sand in the gears to bring down the ACA, I do not know.  But, as I stated above, we delayed the acceptance of this law long enough to allow the political process to gear up for repeal.