Today, the Supreme Court ruled 5-4 in favour of upholding the Patient Protection and Affordable Care Act (PPACA), a move which has liberals elated and conservatives infuriated. Having now read the complete Opinion of the court, I wish to offer my thoughts on this historic ruling.
First, I don’t intend to wade into the provisions of the actual legislation. Suffice it to say that although my political reasoning has shifted since my last sustained foray into politics away from Republican conservatism, I remain firmly antagonistic towards the methods, rationale, implementation of liberal policies. I’d style myself more of a distributist (look it up - Hillaire Belloc and G.K. Chesterton developed it), but that’s merely background. With regard to this ruling, I want to restrict myself to the legal holding and examine it on those merits alone, although I do consider the legislation to be on the whole, a bad piece of law.
That being said, my initial reaction was towards one of disappointment. Disappointment at the Court’s sustaining of the a-constitutional individual mandate, which I consider to be the centerpiece of the legislation. As I began to read through the news reports, and particularly the text of the Opinion itself, my initial concerns have been somewhat alleviated. Particularly, CJ Roberts’ division of the individual mandate question into three lines of reasoning gives hope for this ruling, as well as his all-important inclusion of a discussion of the Anti-Injunction Act as a necessary preface to the ruling. To summarize, the Government argued that the individual mandate (IM) was warranted under the powers granted them by the Commerce Clause and supported by the Necessary and Proper Clause of Article I, and that if this line of reasoning was not compelling, that the IM should be construed as an extension of the Government’s power of Taxation. Thus, the Government offered three distinct appeals for the constitutionality of the IM. Roberts examines each in turn.
With respect to the Commerce Clause argument, Roberts firmly rejects the Government’s reasoning. Quoting from the Opinion: “The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3. 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 the provisions in the Constitution would be superfluous” (18). This is the crux of Roberts’ reasoning for striking down this argument. The Commerce Clause only permits regulation of existing economic activity, according to Roberts. Because the IM does not regulate existing activity, but rather impels it, it cannot be justified under the Commerce Clause.
This is, I think possibly the most important aspect of the ruling. Reading the rest of Roberts’ exposition on this argument, it is clear that he has accepted the full weight of the conservative argument against the Commerce Clause justification, asserting that, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority” (20). Continuing, Roberts argues that, “people, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act” (23). This argument, Roberts rejects categorically: The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States [as opposed to the Federal government]” (26). In doing so, Roberts has struck a decisive blow in the cause of Federalism.
In response to the Necessary and Proper argument advanced by the Government (which is really a corollary to the Commerce Clause argument), Roberts rejects the notion that the IM is a necessary and proper power for the enforcement of the PPACA because that clause only governs powers that had been granted to the government. What the Government attempts in this case, is the appropriation of a “new and potentially vast” power, and then argues that the power is justified on the grounds that it is ‘necessary and proper’ to enforce the law; circular reasoning at its finest.
Thus, Roberts’ Opinion with regard to the first two Government arguments, can only be surmised as a resounding triumph for conservatism. He has accepted the full logic of the dissenting Opinion with regard to the Commerce and Necessary clauses, and like the dissenters, envisages the potential for massive government abuse of this new and radical power. If he had stopped here, conservatives would be happy and liberals incensed. He does not, however.
The third line or Government reasoning asserts that the enforcement mechanism for the IM is not a penalty, although that language is used in the legislation, but a tax, and thus falls under the existing congressional authority to levy taxes. This quote from the Majority Opinion says it well:
“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income” (32).
Conservatives reacted to this logic, accusing the CJ of legal contortions to make this argument fly. Roberts does however, back up his acceptance of the Government’s argument with SCOTUS precedent, and his logic seems reasonably well thought out - provided one accepts the presupposition that the court’s previous holdings are controlling; the logic cannot be attacked readily without attacking the previous holdings of the courts, a proposition welcomed by most conservatives, but difficult in practice to implement. I’m not sure that’s needed here however. Roberts next pages are devoted to exploring exactly why he thinks the penalty qualifies as a tax, which I will not delve into here. The relevant pages in the Opinion are pages 31-37.
An aside within this topic: one thing that I noticed as an objection to Roberts’ initial sketch of the Government’s position, is that in the past, government has only taxed positive behaviour, in the sense of behaviour that has content to it. This line of reasoning, like that of the Commerce Clause argument, asserts the right to tax negative behaviour, in the sense of a lack of behaviour. Later in the Opinion, Roberts specifically addresses this objection: “There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something" (41). This is countered with three rebuttals: first, the Constitution does not protect from taxation through inactivity - the existence and conditions placed upon a direct capitation tax in the Constitution in fact specifically acknowledges a tax on inactivity; second, Roberts appealed to precedent in asserting that the Court has restrained Congress’ power influence conduct through taxation was limited - in the case of taxes whose rates rise to the level of being ‘burdensome or oppressive’, such as to constitute a punitive measure; finally, Roberts recognized that the power of taxation is limited in the degree of conformity it can excise from the individual - “While the individual mandate clearly aims to induce the purchase of health, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS” (37). Thus, in lacking repercussions aside from the penalty payment, the PPACA does not, in the CJ’s opinion, rise to the level of excessive or burdensome.
The second aspect of the PPACA that was ruled upon today was the Medicare enforcement portion of the PPACA. According to this legislation, Congress could rescind past funding more Medicare benefits if states refused to expand coverage to groups of citizens below a percentage of the poverty line. I don’t want to examine this in detail, other than to say that the court delivered a 7-2 punch to this provision, upholding the right of states to opt out of the provision without affection past funding. Congress could only predicate new funding on compliance with the PPACA.
So. What to make of all of this? I have four conclusions, observations, or predictions (take your pick) to draw.
First, and perhaps most importantly, in ruling against the IM via the Commerce and Necessary clauses, Roberts has slammed the door shut on future legislation of this nature. No longer can Congress attempt to justify incursions into citizens’ lives through the wildly over-construed Commerce provision. This is not a complete victory of course, because...
...the IM was upheld through taxation. Yes, the PPACA is law, and it is a terribly cumbersome and bloated affair. But, the irony is that Obama and Congressional democrats, who campaigned on the promise of no new taxes, who advertised, promoted, and harangued the law into existence on the pledge that it is not a tax and would not raise taxes, who finally argued to the Supreme Court that the PPACA is not a tax, have just had their precious legislation upheld, on the reasoning that it is legally a tax. This has repercussions for coming elections, as well as future laws that might attempt similar measures. The Commerce Clause is closed, but taxation is open. However, with this decision, in order to pass legislation with IM-esque provisions, politicians will have to admit that their laws amount to taxes. This is not politically advantageous, and will make it exceedingly difficult for either party to muster public support for a provision that has been deemed a tax by the Court. Thus, although Roberts upheld Obama’s signature piece of legislation, he dealt Obama’s campaign a difficult turn by doing so as a tax. Of course, I have little doubt that politicians will successfully obfuscate the issues and do whatever they well please - this is something of a habit of those who hold, or aspire to office. I have no rosy optimism on this point, although one can hope.
Third, Roberts’ examination as to whether the appellants even had standing under the Anti-Injunction Act at the very beginning of the Opinion (sure to be skipped over by most readers) is important. Its importance is due to the fact that the Anti-Injunction Act deals specifically with taxes, stating, in effect, that applicants must wait for the collection of a tax by the government before they may sue for reimbursement. This was implemented to protect the government’s revenue stream. Although Roberts accepted the PPACA’s language that the IM tax was a ‘penalty’ (the language of the bill) for purposes of granting standing, he reversed this in the body of the Opinion when he granted the ‘penalty’ the status as a tax. In doing so, Roberts has given tacit encouragement to future litigation based precisely on the Anti-Injunction Act. Of course, this will be difficult legally because of the holding that sustained the IM, but I believe it is possible.
Finally, the ruling with regards to the Medicare expansion provision, is a robust articulation of Federalism. In rejecting the Federal government’s right to rescind funding based upon new regulations, Roberts has allowed the possibility of the so-called ‘national’ health care to be anything but - with states now having the ability to opt out of the new Medicare expansions, albeit with no new funding, it is possible that some will, and in doing so, derail the nationwide coverage that the PPACA is supposed to implement.
This was a mixed ruling. I am disappointed with the taxation argument for the IM, but am encouraged at much of the rest of the ruling. It is obvious Roberts crafted this one for the ages - the first several pages are but a civics lesson on our form of government. In affirming the PPACA, Roberts has given Obama the bone he wanted, but with enough hangings-on to possibly catch in Obama’s throat. What’s for sure, is that the continuing fight over this legislation will be waged firmly in Congress, and will depend heavily on the results of the fall election. Popular support for the legislation is lacking, according to several major polling agencies. Perhaps Roberts’ words will come to pass:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. (6).
PDF of the ruling here for your perusal.
PDF of the ruling here for your perusal.