More Thoughts on Today’s Obamacare Rulings
By Carrie Severino
The main holding of the case is that the mandate is upheld as a proper exercise of the taxing power. This is a decidedly awkward result, as the first section of the result explains that the mandate is not a tax for the purposes of the Anti-Injunction Act. During the oral argument the courtroom erupted in laughter when the solicitor general was asked how he could argue that the mandate was not a tax on Monday but was on Tuesday. In the end, the court chose that implausible — even laughable — result in a fairly explicit attempt to hold the mandate constitutional.
The Chief’s opinion, joined by the four liberal members of the court, concedes that this is not the most “straightforward” or “natural” reading of the law. But “[t]he question is not whether that is the most natural into retain of the mandate, but only whether it is a ‘fairly possible’ one.” The dissent, of course, found this view less an interpretation of the statute and more a rewriting of it, noting (emphasis in original):
Of course in many cases what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action; or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive.
It further states that, while:
In a few cases, this Court has held that a ‘tax’ imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax.
Today’s holding is problematic for many reasons. First, it is a novel holding that threatens to expand the taxing power extensively. It removes the taxing power from the representative branches and places it in the only non-accountable branch, the judiciary. Defenders of the law — from President Obama to Nancy Pelosi to Harry Reid — all insisted that the law they voted for was not a tax. Now, when it is off their desk, the court has retroactively declared it a tax, circumventing the public accountability intended by the Founders and recognized by constitutional law as the major check on the taxing power.
This changes the lay of the land for the July 9 repeal vote that is now scheduled in the House. In order to vote in favor of the law, Democrats will now have to vote in favor of a tax. It will be interesting to see how they spin this development.
The good news is that there were a clear five votes for a limited view of the Commerce Clause power: Chief Justice Roberts plus the conservatives writing in dissent — including Justice Kennedy, who read from the bench. Constitutional defenders can be relieved in that silver lining.
The Medicaid expansion holding was also a win for the states. The dissenting justices found it unconstitutionally coercive, as did the Chief joined by Justices Breyer and Kagan. The holding basically left the expansions in place, but said that HHS could only condition new Medicaid funding on states participating in the expansion, not previous funding.