Archive | Individual Mandate

Silver Linings in the Health Care Decision

This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings:

The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate seemed within reach. But despair is unwarranted. The negative consequences of the ruling for constitutional law are actually quite limited, and there is much in it upon which to build.

UPDATE: Just a quick update to clarify some points that I had hoped would be self-evident, but are not. First, to say there is a “silver lining” is to acknowledge that there is a cloud. In this case there is a significant one: the mandate was not struck down. The point of the essay, however, is that not all court losses are doctrinally equivalent. It is possible to lose a case like this in a way that opens the floodgates, and it is possible to lose a case like this on very narrow grounds that don’t upset settled doctrine all that much. In my view, a case like Gonzales v. Raich was the former. I never thought Raich had much chance to prevail (sorry Randy), but I had hoped for a very narrow, “marijuana-is-like-wheat” decision. What we got instead, in my view, were majority and concurring opinions with very expansive language.

NFIB, on other hand, is more of the latter. The fear was that if the mandate was upheld, the Court would blow through yet another potential limitation on use of the Commerce Clause or Necessary & Proper Clause. It did neither. For those who are disappointed the Court did not overturn Wickard, that was never on the table. The most [...]

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Chief Justice Roberts and the window tax

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be  “undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. [...]

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Making Sense of Chief Justice Roberts’ Opinion

I can’t speak to how the Chief Justice interacted with his colleagues on the Court during the deliberations in NFIB v. Sebelius, or to whether he truly flip-flopped on the mandate or (as Mark Tushnet suggests) he had been the “least persuaded” of the anti-mandate arguments at the initial conference and eventually concluded that it could be upheld. I do, however, think many of the Chief Justice’s critics have failed to recognize how this opinion fits with what we’ve seen from the Chief in his first several years of the Court. Specifically, I believe we can explain Roberts’ vote in a way that is quite consistent with his behavior in other cases and that does not require ascribing political motives to him. While I am not persuaded by Chief Justice Roberts’ opinion, I believe it squares with his overall jurisprudential approach for reasons I first noted here and here, and will elaborate upon in this post.

NFIB v. Sebelius was not the first case in which we saw Chief Justice Roberts embrace a strained “saving construction” of a statute in order to uphold it against a constitutional challenge. He did the exact same thing in NAMUDNO v. Holder. The Chief’s NAMUDNO opinion is quite unpersuasive — unless one believes there is a substantial independent value in avoiding declaring a law unconstitutional. The big difference between Roberts opinion in NFIB and his opinion in NAMUDNO is that in the NAMUDNO seven other justices were willing to go along. Both cases, however, show a justice willing to take liberties with statutory text if the alternative is to strike the statute down.

A second example can be found in Jeff Toobin’s behind-the-scenes account of Citizens United. There, Toobin reports, the Chief drafted an opinion that would have stretched the [...]

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Leaks, Counter-Leaks and the Reason for Roberts’ Switch

Amidst all of the leaks and counter-leaks about the process that led to last week’s individual mandate decision, I find it significant that the pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he had a change of heart about the constitutionality of the mandate, but out of fear of attacks on his and the Court’s reputations. Indeed, some of the pro-Roberts leaking actually reinforces the notion that the latter was the reason for his switch. For example, if it is true that some two-thirds of what eventually became the dissenting opinion was initially drafted by Roberts, that makes it more likely that he had a strong belief that the mandate is unconstitutional. I doubt he would have taken the time to write a long and detailed opinion invalidating the mandate if he were not pretty clear in his mind that that was the way he intended to vote.

If fear of attacks on the Court really was his motive, it is extremely troubling for reasons I discussed here:

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject…. But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution. If fear of criticism by hostile politicians and pundits can deflect the Chief Justice from doing his duty, that does not bode well for the future.

Sometimes, the Court must strike down laws that violate the Constitution even when doing so is highly unpopular and might subject the Court to far

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A Simple Solution to the Holding vs. Dictum Mess

Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself said the holding was. In Part III-C of Chief Justice Roberts’ opinion, which is a part of the opinion of the Court joined by the four liberal justices, Roberts writes: “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we ab­stain from the regulated activity.” The fact that the four liberals joined this part of the opinion suggests that they recognize that the Chief Justice’s reasoning about the Commerce Clause is part of the holding, even though they don’t agree with it. Perhaps they joined this part because they realize that this conclusion did in fact enjoy the support of five justices (Roberts and the four conservative dissenters). In any event, it seems to me that the official Opinion of the Court is the best possible authority on what is and is not part of the holding.

It is not completely clear whether this statement is meant to cover the Commerce Clause as augmented by the Necessary and Proper Clause, as well as the former alone. But given the reasoning of the rest of Roberts’ opinion (which covers both), I think the former interpretation is more likely.

I should add that I owe this point to co-blogger Jonathan Adler, who could not post it himself right now, and therefore authorized me to do it.

There are also other reasons for concluding that the Commerce Clause reasoning is part of the holding as well. John Elwood [...]

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What Did the Court “Hold” About the Commerce Clause and Medicaid?

Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

Id. at 193. So what happens when votes supporting a proposition of law are supplied by dissents?

This is not simply a matter of academic concern. A majority of the Justices concluded in NFIB v. Sebelius that the Individual Mandate exceeded Congress’s Commerce Clause powers and the same group (plus Justices Breyer and Kagan) concluded that the Medicaid expansion violated Congress’s Spending Clause authority. But four of those votes, necessary to compose a majority, did not “concur[] in the judgment[]”—they dissented. (The same question arises in determining the “holding” of Williams v. Illinois, where—as Justice Kagan herself noted—five Members of the Court rejected the plurality’s reasoning at every turn, but four of them were in the dissent.)  What the Court has “held” is extremely important to lower courts seeking to apply the decision, especially because ordinarily only a “holding” can displace contrary circuit precedent. [...]

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My Politico Post Assessing the Individual Mandate Decision

The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here:

Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted the mandate to be invalidated. But it also endorses some of our most important arguments.

Chief Justice John Roberts’ opinion for the Court actually rejects the federal government’s main arguments in favor of the mandate: that it is authorized by the Commerce Clause and Necessary and Proper Clause….

Sadly, Roberts undermined much of the impact of his reasoning by ruling that the mandate is constitutional because it is a tax. His dubious reasoning would allow Congress to use the tax power to mandate almost anything so long as the penalty for violating the mandate is a monetary fine structured similarly to the health insurance mandate….

Conservatives and my fellow libertarians should not be angry at Roberts merely because he voted against us in a close and difficult case. But it is disappointing that he did so on the basis of a dubious tax argument that had been uniformly rejected by every lower court that ruled on it…

[P]eople of all political persuasions have reason to be troubled by recent revelations suggesting that the Chief Justice initially intended to strike down the mandate and then changed his mind not because of legal considerations, but in order to protect his own and the Court’s reputation against attacks by those who would have been angered by a ruling striking down the mandate.

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject…. But if

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The Mandate Decision and Public Perception of the Court

Before the Supreme Court’s decision in NFIB v. Sebelius, many predicted the decision would influence public perceptions of the Court and its legitimacy. If a new Rasmussen poll is to believed, the decision has had some such effect already. From the poll summary:

A week ago, 36% said the court was doing a good or an excellent job. That’s down to 33% today. However, the big change is a rise in negative perceptions. Today, 28% say the Supreme Court is doing a poor job. That’s up 11 points over the past week.

The new Rasmussen Reports national telephone survey, conducted on Friday and Saturday following the court ruling, finds that 56% believe justices pursue their own political agenda rather than generally remain impartial. That’s up five points from a week ago. Just half as many — 27% — believe the justices remain impartial. . . .

Thirty-seven percent (37%) now believe the Supreme Court is too liberal, while 22% think it’s too conservative. A week ago, public opinion was much more evenly divided: 32% said it was too liberal and 25% said too conservative.

For details on the poll, see here. The usual caveats apply, and who knows whether this poll is indicative of how the Court or this decision will be viewed over time. [...]

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Barack Obama’s Ironically Prescient Speech Opposing John Roberts’ Nomination to the Supreme Court

In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge…

The problem I face… is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult….

The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak….

I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence.

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New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision

A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin.

This is a significantly smaller anti-mandate majority than the 65-70% who said they wanted the Court to strike down the mandate in polls conducted before the decision was handed down. The difference may well be the result of the fact that a substantial minority of the public will tend to assume that any decision the Court makes is likely to be right unless they have very strong personal feelings on the subject.

Nonetheless, this result undermines the notion that the ruling will be a boost to the Court’s legitimacy or that its public image would have suffered had it ruled the other way. It’s unlikely that the Court’s legitimacy improved much in the eyes of anyone but committed liberals and legal academics.

To avoid misunderstanding, I will repeat what I have said many times before: public opinion about a court decision says very little about whether the ruling is right or wrong. Popular rulings are sometimes badly misguided (consider Korematsu v. United States, which was extremely popular at the time), and unpopular ones can be correct (the flag burning cases are a good example).

I do not believe that the Court should decide cases based on the perceived effects on its “legitimacy.” But for those who disagree, the individual mandate decision was not the great triumph that some imagine it to be. [...]

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Of Silver Linings and Clouds

Today’s USA Today quotes me on the individual mandate decision as follows:

“You can look for silver linings in the cloud, but it’s still a cloud,” said George Mason University law professor Ilya Somin, who wrote a brief opposing the health law. He said the decision offers Congress a road map to enact similar laws by crafting them as taxes instead of mandates.

The quote is accurate. I do think the ruling is a cloud over the Constitution, and I do believe that Chief Justice John Roberts’ opinion allows Congress to mandate almost anything it wants, so long as the mandate is structured as a so-called “tax” similar to the individual health insurance mandate. In addition, the ruling upholds a major unconstitutional statute. Although the law might be repealed, there is also a good chance it will not be. Relative to a decision striking down the mandate that might have been and almost was, this result is a disappointment.

Some might wonder whether the above is consistent with other statements I have made to the effect that the decision also offers supporters of limits on federal power cause for optimism. Part of the explanation is that I spoke with the USA Today reporter less than an hour after I got the decision, and I have since had more time to study it closely, as well as read commentary by both supporters and opponents of the mandate who believe the Court’s decision gave a lot of ground to the latter.

But, ultimately, I don’t think there is any great inconsistency in my view. The decision is a disappointment relative to one that actually invalidated the mandate, and also dangerously expands Congress’ tax power. I fully acknowledge that. But at the same time it endorses important constraints on Congress’ powers under [...]

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Next step: Repeal the individual mandate because it is unconstitutional

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the [...]

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Reasons for Cheer

From James Stewart’s “Common Sense” NYT column:

Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on vacation.

“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence. It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.” . . .

The Yale constitutional law professor Akhil Reed Amar has long argued that the health care act could be upheld as a tax, whether or not the statute actually used the “T-word,” as he put it. Still, he told me that he was troubled by the court’s restriction of the commerce clause and the triumph of the broccoli argument.

“There were five votes upholding the commerce clause interpretation, which is unfortunate,” he said. “This is very significant.” Congress now can’t accomplish anything it might have enacted under the commerce clause by simply calling it a tax. “There are limits to the tax power. It has its own internal limits and logic,” he said. . . .

“This opinion reinvigorates a stricter understanding of all the powers of government,” Professor Amar said. “There’s a renewed interest in limits to federal power. The language about inactivity suggests that any laws that purport to order conduct, including existing laws, have the potential to be challenged. This could become a powerful tool to achieve a more limited federal government.”

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