My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it:
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.
I agree with Eric that Obamacare opponents have every right to continue attacking its constitutionality. The other branches of government and the general public have to obey Supreme Court decisions. But they don’t have to agree with them or refrain from urging their reversal. This goes double for a closely divided 5-4 decision resting on highly contestable reasoning that could well be reversed or narrowed by a future Court. Just as liberals continue to attack decisions they oppose, such as Citizens United, conservatives and libertarians should oppose Sibelius. I think Eric is also correct that the other branches of government can reject a policy as unconstitutional, even if the Supreme Court rules that it is permissible. This is particularly true in a case like this one, where Chief Justice Roberts explicitly rejected the “most natural” reading of the individual mandate law and adopted an extremely strained alternative for the purpose of saving it from invalidation.
Eric also has a good summary of some the reasons why the Chief Justice John Roberts’ opinion upholding the mandate as a tax was wrong:
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.
As a matter of short term political strategy, it’s hard for me to say whether the GOP will be better off adopting Eric’s strategy, or instead accepting the Court’s ruling that the mandate can be considered a tax, and then attacking Obama for violating his promise not to increase taxes on the middle class. The latter strategy would be a reversal of the position most Republicans adopted during the Obamacare litigation. But the electorate often rewards opportunism more than consistency. Be that as it may, I certainly hope that opponents of the mandate adopt a long-term approach like that urged by Eric.