Dear Dahlia, Walter, and Judge Posner,
There was always a compromise to be had—a way out of striking down the individual mandate without giving Congress the power to force people to buy health insurance (or broccoli!). A few sharp-eyed commentators pushed it. One was our own Walter. Another was Joey Fishkin on Balkinization. His idea was that the mandate was actually a choice: between buying health insurance and paying a small penalty. Which all along should have been called a tax, and would have been but for the Democrats’ skittishness about using that word. Chief Justice John Roberts essentially saved the Obama administration and Congress from that political and bad semantic decision today. He upheld the individual mandate as a tax, not as an expression of Congress’ Commerce Clause power. Joining him were the court’s four liberal-moderates—Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
Not among those five votes was Anthony Kennedy. Here is a closing line of the dissent he signed, along with Samuel Alito, Antonin Scalia, and Clarence Thomas: “[W]e would find the Act invalid in its entirety.”
So, the Affordable Care Act came within one vote of being struck down entirely. And that missing vote was Roberts’. I would never have called that in a million years. But here is his key line: “The individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.” This is fully in the tradition of judicial modesty and restraint: Courts are supposed to read ambiguous language in statutes to uphold them, if they can, without distorting the words beyond recognition. Because otherwise, they go too far to block the work of the directly elected branches—the definition of activism. That’s the gift Roberts gave President Obama and Congress. To read “penalty” as “tax” isn’t to distort. It is generous, but properly so.
Left to their druthers, the four justices on the left—Breyer, Ginsburg, Kagan, and Sotomayor—would have gone down the Commerce Clause road with the Obama administration. They think that Congress did have the power under the Commerce Clause, as well as its authority to tax and spend, to enact Obamacare. Roberts disagreed. He wrote. Here is the limit he set: “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.” Also: “The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it.” (Roberts also said that Obamacare wasn’t a valid exercise of Congress’ powers to enact laws that are necessary and proper to its grants of power, which I’m going to leave to one of you to parse.)
How much does it matter that the Supreme Court upheld the law as a valid use of Congress’ taxing power instead of its commerce power? I’m more interested in your thoughts than mine, but to start us off, I don’t think it does. It matters not at all for saving the health care law, as far as I can see with all of 10 minutes to digest. And more broadly and in the future? To me this looks like a victory for the libertarian, let’s-limit-Congress reading of the Constitution that is symbolic for now and maybe not much more than that in the future. After all, future presidents and Congresses can craft legislation to heed Roberts’ warning. As long as they don’t regulate people for doing nothing—for not buying something, in this case—they’re in the clear.
On the underlying question, I’m with the four liberals here: I don’t buy the idea that not buying insurance equals not participating in the national health care market. But I don’t think upholding Obamacare on alternate grounds, as lawyers say, means the court trampled all over Congress’ powers to regulate commerce between the states. It looks more to me like a speed bump or an obstacle to detour around than an insurmountable wall, yes?
Off to read more, can’t wait to hear your thoughts,