National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). Today, the Supreme Court of the United States voted 5-4 to uphold the constitutionality of the so-called “individual mandate,” a centerpiece of the Affordable Care Act, on the grounds that it falls within the power of Congress to impose taxes. A payment denominated as a penalty in the statute in fact qualified as a tax under the deferential standard that requires the Court to strain, if necessary, to find enactments of Congress constitutional. Chief Justice Roberts wrote the majority opinion, in the essential parts of which Justices Ginsburg, Breyer, Sotomayor and Kagan joined. Justices Scalia, Thomas, Kennedy and Alito dissented in a shrill joint opinion that comes as close to any opinion issued since Lochner v. New York, 198 U.S. 45 (1905), to constitutionalizing their particular views of economics and the political scene.
The Court also declared, however, again by a 5-4 vote (on this issue, Chief Justice Roberts joined Justices Scalia, Thomas, Kennedy and Alito to form a majority) that the Affordable Care Act was not constitutionally permissible under the Commerce Clause. The majority on that issue accepted the notion that the individual mandate purported to regulate “inactivity” by forcing citizens who wish to go without health insurance to buy it anyway, a concept that the five-Justice majority on that issue did not find in any prior case. Justices Ginsburg wrote a separate opinion, joined by Justices Breyer, Sotomayor and Kagan, that would have found the statute constitutional as within the powers of Congress under the Commerce Clause.
As discussed here, the indivdual mandate was in fact comfortably within the power of Congress under the Commerce Clause, and the argument that the penalty for not obtaining insurance was in fact a tax seemed weaker because it went against the Obama Administration’s expressed views. It also required a certain amount of legal gymnastics. The majority here found that there was no tax for purposes of the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment of any tax shall be maintained in any court by any person,” and would thus have precluded suits against the Affordable Care Act. At the same time, the majority determined that the individual mandate did entail a tax for purposes of the constitutional analysis. The two standards are very different, and Chief Justice Roberts presented a very sophisticated analysis that laid out very effectively why the result on the tax issue was the right one. But laypeople will find it difficult to understand how there is a tax here for one purpose but not for the other.
The Chief Justice must have been extremely tempted to allow what presumably are his personal political views to dictate his decision in this case. Instead, on the tax issue, he followed the law (including those parts of it that require the Supreme Court to make every effort to find Congressional enactments constitutional in areas such as this) where it led and found the mandate constitutional. At the same time, he and the other Justices who rejected the Commerce Clause as a basis for the mandate vindicated the views of those who believe that the federal government has become too powerful.
The Chief Justice’s willingness to be a statesman led to the right result, even if the basis for that result might be second-best. At the same time, whether deliberately or not, the Court’s decision gave fodder to the Presidential campaigns of both President Obama and Governor Romney. The President can now boast that his signature initiative has been declared constitutional, just as he had predicted, despite unremitting Republican opposition. Governor Romney and his supporters in the Tea Party faction of the Republican party can campaign on the idea that the Court vindicated their view of the limitations on the federal Commerce Clause power, and they can contend that the Affordable Care Act is, in reality, a “tax hike.”