Archive | Individual Mandate

The Chief Gets No Respect

I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision.

Last week, in poking fun here at Yale’s Akhil Amar, I was also making a serious point. Liberals who were all keyed up to demonize a conservative 5-4 decision against ObamaCare were committing the classic fallacy of the false dilemma, supposing just two possible alternatives when there are more than two. They were so convinced of the slam-dunk character of their own arguments for the law’s validity that, for them, the only possible explanation for overturning it would have to be that the justices in the majority behaved politically—and by “politically” read “abjectly partisan in the most craven sense.” What they did not seem willing to credit is the obvious third possibility, that the justices could have a good-faith view of the Constitution’s meaning that differs from their own, even if it does not in the end persuade them—and that no “stick it to Obama” motivation was behind their decisions.

Now I find, amid the pandemonium of commentators on yesterday’s ruling in NFIB v. Sebelius, that much the same fallacy of the false dilemma, with some interesting variations, afflicts many of the critics of Chief Justice Roberts on the right, and even some of the commentators who praise him on both left and right. That is, the chorus seems to be “the chief justice behaved politically,” and then that putative behavior is either praised or blamed. Almost (but not quite) universally, there is a refusal to credit the possibility that Roberts meant and believed everything he said in his

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Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions

Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power:

The obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act….

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war….

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds….

This was the first significant loss for the federal government’s spending power in decades….

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce.

Obviously, Katyal and I disagree on the merits of the two cases. For example, I think he is wrong to suggest that “until now, it had been understood that when the federal government [...]

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NFIB as Marbury

My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that a conditional congressional grant violates the rule.

The folks who think that the “evolving Constitution” completed its evolution in 1937-42, and that everything the Court did during those years must be applied today with the broadest possible reading, should be especially pleased with the NFIB Court’s vigorous enforcement of a very important New Deal precedent.

My essay argues that the application of the non-coercion rule, as well as the  application of the doctrine of incidental powers for the Necessary and Proper Clause, are among the many elements of the Roberts opinion whose significance approaches that of some of the most important opinions by Chief Justice Marshall.

Although we do not know Chief Justice Roberts’ motives, I suggestion a comparison of NFIB to Marbury v. Madison: adroitly escaping from a partisan assault on the Court itself, the opinion moves constitutional law very far in the opposite of the direction favored by partisan assaulters–and does so in a way that leaves the partisan assaulters unable to use the case in their attacks on the Court. [...]

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National Review Symposium on the Health Care Decisions

For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here:

Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also a partial vindication for those of us who worked to get the mandate struck down. Chief Justice Roberts’s opinion for the Court actually rejects the federal government’s most important arguments for the mandate: that it is authorized by the Commerce Clause and the Necessary and Proper Clause. It also reaffirms the need to impose limits on federal power and emphasizes that Congress does not have the authority to impose whatever mandates it wants. Yet Roberts then snatched defeat from the jaws of victory by ruling that the mandate is constitutional because it is a “tax….”

Fortunately, Thursday’s closely divided decision is not the end of the debate over the scope of federal government power.

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Do the Court’s Commerce Clause and Necessary and Proper Clause Rulings in the Individual Mandate Case Matter?

As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant in the future.

One possible reason to dismiss the importance of the Court’s treatment of these issues is that it might have been mere dictum. After all, the Court upheld the mandate based on the Tax Clause, so the other two issues were not essential to the outcome. However, as co-blogger Jonathan Adler points out, Chief Justice Roberts’ controlling opinion explicitly holds that this analysis was essential to the outcome:

[T]hese analyses form an essential predicate to his ultimate conclusion that the mandate could be upheld as a tax. As the entire Court accepts, the most natural reading of the minimum coverage provision is as an economic mandate adopted pursuant to the Commerce Clause. It is only after rejecting the possibility that the mandate could be justified in this manner that the Chief returns to the text to see if it is susceptible to an alternative construction. Thus, the only reason the Chief Justice even considers whether the mandate could be considered a tax, the statutory text notwithstanding, is because of his prior conclusion on the Commerce and Necessary and Proper Clauses. Thus this decision provides five firm votes for meaningful limits on the most expansive of Congress’ powers.

One can still argue that the Commerce and Necessary and Proper analysis was dictum on the grounds that it was not seen as essential by the other four justices who voted to uphold the mandate. But to the extent that the Chief Justice’s [...]

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SCOTUSBlog Commentary: “Lose the battle, win the war?”

My contribution to the SCOTUSBlog post-decision symposium elaborates on some of the points I made in my early Bench Memos post on the decision. Here are some excerpts:

For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a disappointment. Yet for those who hoped the Court would reaffirm that the Constitution creates a federal government of limited and enumerated powers and that it is the responsibility of the Court to enforce such limits, there is much to like in today’s decision. While the Court upheld the PPACA, it reaffirmed the foundational principles of the nation’s constitutional structure and confirmed that the federalism decisions of the Rehnquist Court were not aberrations. In a very real sense, proponents of federalism may have lost the battle, but won the war. . . .

It would be tempting to read the Chief Justice’s discussions of the Commerce and Necessary and Proper Clauses as mere dicta. It would also be wrong, as these analyses form an essential predicate to his ultimate conclusion that the mandate could be upheld as a tax. As the entire Court accepts, the most natural reading of the minimum coverage provision is as an economic mandate adopted pursuant to the Commerce Clause. It is only after rejecting the possibility that the mandate could be justified in this manner that the Chief returns to the text to see if it is susceptible to an alternative construction. Thus, the only reason the Chief Justice even considers whether the mandate could be considered a tax, the statutory text notwithstanding, is because of his prior conclusion on the Commerce and Necessary and Proper Clauses. Thus this decision provides five firm votes for meaningful limits on the most expansive

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Where Richard Friedman and I Agree

Note the close parallels between my statements in this CBS News report and on the mandate decision, and those of University of Michigan law professor Richard Friedman, a well-known liberal legal scholar. It’s almost as if we coordinated our remarks in advance. But in truth I had no idea what he said until I read the article afterwards:

Although his liberal allies found that the commerce clause is a justifiable means to invoke the mandate, Roberts found it does not give Congress that authority. However, the court determined the mandate is constitutional under Congress’ power to “lay and collect taxes.”

Ilya Somin, law professor at George Mason University who wrote an amicus brief opposing the mandate, said he is “more surprised” that the court upheld it under the tax provision.

It was “the federal government’s weakest argument,” he said.

Richard Friedman, law professor at the University of Michigan, also said he was surprised that Roberts backed the tax argument, which he also called “the weaker argument….”

The University of Michigan’s Friedman attributed Roberts’ position to the weight of the case. “He was reluctant to see his court be the first one in 75 years to throw out a significant piece of legislation.”

Somin, who opposed the mandate agreed, saying, “It is generally rare for a court to strike down major legislation that has the support of the president and his party,”

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Assessing My Individual Mandate Predictions

Now that the individual mandate case has been decided, it’s worth taking a look at what I got right and wrong in making predictions about the case in advance. I think the record is a mixed bag.

On the plus side, I was right to insist from early on that this was a close case that the plaintiffs had a real chance to win, and in my more recent post-oral argument prediction that the outcome was a 50-50 proposition. A 5-4 decision where the decisive swing voter endorses most of the key arguments of the losing side is about as close to a 50-50 outcome as you can get. I was also right to predict that the conservative justices, including Justice Kennedy, would focus on the question of whether or not the government’s arguments for the mandate would give Congress a blank check to enact other mandates. All five of them, including Chief Justice Roberts, worried about this, and four voted to strike down the mandate in large part for that reason.

On the other hand, I was wrong to think that the federal government was unlikely to prevail on the grounds that the mandate is a tax, and wrong to believe that Kennedy was a more likely vote to uphold the mandate than Roberts. I reached the latter conclusion despite noting that Kennedy had expressed great concern about the need to limit federal power in recent opinions. I gave Kennedy too little credit for having genuine concern about federalism and Roberts too much.

On the tax question, I was lulled into a false sense of security by the overwhelming rejection of that argument by lower court judges, and especially by the justices’ skepticism about it at the Supreme Court oral argument. I always [...]

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My SCOTUSblog Discussion of the Individual Mandate Decision

SCOTUSblog has just posted a detailed analysis of today’s decision that I did for them. It’s much more thorough than anything I have been able to put up elsewhere. Here is an excerpt:

Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued that the mandate is unconstitutional. One might even call it taxing. The plaintiffs came about as close as one can to winning a major constitutional case without actually winning it. It is the legal equivalent of losing the World Series after leading in the bottom of the ninth inning in the seventh game. It is not a happy day for supporters of limited government.

Yet the Court also offers us a measure of hope and vindication. A majority of the justices rejected claims that the mandate is authorized by the Commerce Clause and Necessary and Proper Clause. That has little immediate impact, but bodes well for the future. The numerous pundits who claimed that this case was a slam dunk for the federal government turned out to be spectacularly wrong. The struggle over the constitutional limits on federal power is far from over….

In his discussion of the Commerce Clause, Roberts ruled that the Constitution denies Congress the power to “bring countless decisions an individual could potentially make within the scope of federal regulation and … empower Congress to make those decisions for him.” Yet, having closed the front door of the Commerce Clause, the Chief Justice has now “empowered” Congress to make those same decisions for us through the tax power…

Today’s decision is unlikely to be the last word on the constitutional limits of federal power. As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues….

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The Tax Issue is Not Just a Technicality

Some, including co-blogger Orin Kerr, have argued that today’s ruling that the individual mandate is a tax rests on a mere technicality. The mandate could have been a tax if only Congress had labeled it as such or structured it slightly differently, and so it makes sense for the Court to assume that it is a tax rather than invalidate an important law.

But the argument that this is not a tax has never been just about labeling or technicalities. The mandate is substantively a penalty rather than a tax, for reasons I explained here:

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right….

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose. The Constitution gives Congress the power to enact several types of taxes: Excise taxes, duties and imposts, income taxes, and “direct taxes” that must be apportioned among the states in proportion to population.

No one, including the federal government, claims that the individual mandate is a duty or

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My Initial Critique of the Individual Mandate Decision

We have been having technical difficulties that make it almost impossible for us to post on this site. I apologize to our readers.

However, I have posted an initial critique of the Court’s decision as an op ed for the New York Daily News, here:

Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate shows that the Supreme Court takes constitutional limits on federal power seriously – but not seriously enough. As a result, Congress now has the power to impose a mandate to do almost anything, so long as it is structured as so-called “tax.”

That ruling both misreads the Constitution and gives Congress a dangerous new power.

Although he cast the deciding vote to uphold the mandate, Chief Justice John Roberts actually rejected the federal government’s main argument for the law: that the mandate is authorized by the Commerce Clause, which gives Congress the power to regulate interstate commerce….

Why then did Roberts vote to uphold the law? Because he concluded it is a “tax” authorized by Congress’ power to impose taxes under the Tax Clause. In doing so, he endorsed an argument rejected by every lower court ruling that addressed it. He also rejected the views of President Obama and numerous congressional Democrats, who repeatedly assured us that the mandate was not a tax. As the President put it in 2009, “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”

The President was right and Chief Justice Roberts is wrong.

Roberts argues that the mandate is a tax because it imposes only a monetary fine on those who fail to comply, the fine does not apply to people too poor to pay income taxes, and that fine is collected by the

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SCOTUSBlog Post-Decision Symposium

SCOTUSBlog has begun posting contributions to its post-decision symposium on NFIB v. Sebelius. Among those with contributions thus far are Laurence Tribe, Alan Morrison Ricahrd Epstein, and our own Randy Barnett. More conspirators will follow (in fact, I just sent mine in — so now I can go read the others!).

UPDATE: Here are posts by conspirators Ilya Somin, David Kopel, and yours truly. [...]

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Supreme Court Majority Endorses Activity-Inactivity Distinction

Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power because it does not regulate “economic activity,” but instead targets inactivity. Chief Justice Roberts also noted that upholding the mandate on this basis would lead to unconstrained congressional authority to enact other mandates:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated….. If the power to “regulate” something included the power to create it, many of theprovisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to“coin Money,” in addition to the power to “regulate the Value thereof.” Id., cl. 5. And it gives Congress the power to “raise and support Armies” and to “provide and maintain a Navy,” in addition to the power to “make Rules for the Government and Regulation of the land and navalForces.” Id., cls. 12–14. If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary…

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity….”

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product,on the ground that their failure

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Larry Solum on the Individual Mandate Decision

Georgetown law professor Larry Solum has an excellent post on the mandate decision, much of which I agree with:

Had the Court struck down the mandate, it would have clearly represented a tectonic shift in American constitutional law. In the extraordinarily unlikely event that there had been a majority opinion authored by one of the four justices fromt he left wing of the Court, the decision would have cemented (at least for a time) the most common academic understanding of Congress’s power under Article One of the Constitution. Roughly, that understanding is that Congress has plenary legislative power, limited only by the carve outs created by the Supreme Court’s decisions in Lopez and Morrison….

Most of the academic community was committed to some version of the prevailing gestalt view of federal power. Some believed in unlimited and plenary congressional power. Others believed that the power was virtually unlimited, subject to a minor exception (details varied) for Lopez and Morrison. If you were committed to the gestalt as your mental picture of the constitutional doctrine, then the challenge to the individual mandate was radically implausible and might even be characterized as frivolous.

Nonetheless, the lawsuits against the individual mandate did not meet with unanimous rejection by the federal courts. Instead, a number of federal judges decided that the individual mandate was unconstitutional….

At this stage of the game, the prevailing view was that the Court would almost certainly uphold the mandate if it reached the merits. Many commentators predicted an 8-1 decision, with Justice Thomas dissenting on originalist grounds. From the point of view of the prevailing gestalt, Thomas was simply an outlier, because he did not accept the New Deal Settlement and instead endorsed a pre-New-Deal vision of real and substantial limits on Congress’s enumerated powers….

If you continued to

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