Sundry Thoughts on NFIB v. Sebelius, the Day After…

It's a Tax!

Okay. So by this point, you’ve all read the ACA/Obamacare opinion, which will from here on out be known as NFIB v. Sebelius. And if you’re reading this blog post, you’ve probably been reading other analyses around the interwebs. My favorite thus far (and my recommendations) are: Mike Dorf here (and I’m sure he’ll have more to say), the Slate discussion series, which includes Judge Richard Posner, Walter Dellinger, and Dahlia Lithwick (among others), and all of the SCOTUSblog coverage, including this helpful “Plain English” explanation of the decision. (The nice thing about SCOTUSblog, is that even when they write non-technically, they don’t get sloppy with the facts.)

Dewey Defeats Truman!

I am not going to make any effort to mold my thoughts into any sort of cohesive narrative. I read the opinions. I read a lot of the coverage. I am going to make this post a clearinghouse for all of my initial thoughts and observations on the off chance that you might be interested. And because I don’t want to waste you’re time, I’ll try to focus on thoughts/observations that have not already flooded the twitters and interwebs. Also, I’ve numbered them and sorted them by subject, so you can just skip the boring stuff. (Please, no jokes about how it’s all boring stuff.)

1. What happened to Kennedy? — A lot of people, including me, sort of assumed that Kennedy would be the vote in play to support the ACA under the commerce power. I thought Roberts was in play too, but not as much as Kennedy. Maybe that’s because Kennedy voted in favor of the government’s ability to regulate home-grown marijuana in Raich (but of course Scalia concurred in that result as well). Well, I was wrong. Remember that Kennedy voted to limit federal power in both of the two big modern Commerce Clause cases: Lopez (striking down parts of the Gun-Free School Zones Act) and Morrison (striking down parts of the Violence Against Women Act), each of which, at the time, were considered radical/activist interpretations of the constitution to limit federal power. (Now, of course, we have incorporated them seamlessly into our understandings of the Commerce Clause, whatever they may be.)

2. Roberts “joined” the liberals? — The press keeps saying that Roberts joined the liberal wing of the Court in this decision. I don’t think that’s right. Roberts wrote an opinion stating (a) the mandate was not a proper exercise of the Commerce Clause, (b) the Medicaid expansion was not proper use of the spending power, and (c) the mandate was proper as a tax under the government’s taxing power. The liberals did not join Roberts’s Commerce Clause discussion. They joined the section of his opinion on the tax issue. And Breyer and Kagan (but not Sotomayor or Ginsburg) joined him on the Medicaid issue. So I think it’s more fair to say that some of the liberal Justices joined Roberts on some parts of his opinion.

Why is this important? Well, by having the liberals selectively join him (and instead of him joining them) he’s the one writing so he controls the precedent. His discussion of the Commerce Clause (not joined by any other Justice!) will influence future decisions. His discussion of the tax power will create binding precedent for future tax power cases — likely a more conservative precedent than had Ginsburg or one of the other liberals written the majority opinion on the tax issue. And his limited holding on the Medicaid issue because the Court’s holding — instead of Ginsburg/Sotomayor’s view that the Medicaid extension should be upheld or the conservative’s view that the entire thing should get tossed.

I think it does a disservice to Roberts to say he joined the left of the Court. He wrote his own opinion, and the left joined him in spots. The outcome is much different than if Ginsburg had written an opinion for the Court, which Roberts merely joined.

3. When is a “tax” not a tax? — I really like Roberts’s move to allow for different definitions of “tax” depending on whether we’re talking about the AIA or the Constitution’s tax power. In short: the Anti-Injunction Act says that courts can’t stop the collection of a tax; rather, a taxpayer has to pay and then sue to get her money back. So if the Obamacare mandate involved a tax, the Court would not be able to hear the case because the tax had not been collected yet. On the other hand, if the mandate was a tax for constitutional purposes, then it would be within Congress’s tax power, and therefore constitutional. Roberts concluded that the mandate was not a tax under the AIA (so the Court could hear the case) but it was a tax under the Constitution (so it was within Congress’s power to enact the mandate).

How’d he do that? Well, it’s a great example of how words can mean different things in different contexts. The AIA is a congressional statute reflecting Congress’s desire that its taxes be collected before challenged. You gotta pay to play, so to speak. But that is a completely congressional creation. Congress can (and has!) say “we want this fee to be considered a tax for purposes of the AIA.” And if Congress doesn’t want the AIA to apply, it can use a word other than “tax” and take the issue out of the AIA’s protection. The point is, this is Congress doing what Congress wants in a game for which Congress writes the rules. In such a case, there no reason not to simply follow the labels Congress puts on its statutes.

The shoe is on the other foot, however, when it comes to the Constitution. Congress does not write the rules for its constitutional powers. So there is no reason to — indeed, there is reason not to — follow the labels Congress puts on its own statutes. Congress can’t just call something a tax to make it within Congress’s taxing power. So on the constitutional question, Roberts looked not to what the mandate was called, or what Congress thought it was, but what the mandate did. In other words, does it quack like a tax? Does it walk like a tax? Does it look like a tax? Then it’s a tax.

So I like that a lot. He’s formalist when Congress is playing its own game with its own rules, and he’s pragmatic/functionalist when dealing with the Constitution. Good stuff. Here’s what he said:

It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

4. The action/inaction distinction. — This is the heart of the Commerce Clause issue in this case. The mandate requires people to purchase insurance. Clearly, the regulation of the national health insurance market is the regulation of commerce. But does the constitutional regulation of a market include the power to force people to join that market? Does there need to be economic activity for Congress to regulate? Or, to put it another way, is it economic activity when a person chooses not to join an economic market?

Roberts says: “The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.” In other words, Congress can’t claim to be regulating commerce when it is forcing people to engage in commerce. He goes on to note that “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.” “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 to do so affects interstate commerce.”

And that’s sort of right. The examples about ship owners being mandated to get insurance are not on point, because those people are already engaged in commerce. And the examples about forcing people to buy guns for militia service, etc. can be viewed as exercises of powers other than the commerce power.

Okay, but the point is that once Congress is exercising a constitutional power, it is allowed to mandate people to do things. It can even mandate them to actually do things, not just buy something. Congress can make you go to war. It can make you go to jury service. Why? Because of the constitutional powers of creating courts and supporting armies.

Is it any objection to say “But I don’t use the courts!” or “But I am not for the war! I do not fight!” Nope. Just because individuals have no direct relationship to the courts or to the war, that doesn’t mean Congress cannot mandate them to participate. Once Congress is exercising its power, it can force you to do whatever it wants.

What does that mean for the mandate? I think it means a lot. The mandate doesn’t just require people to do anything  it requires people to purchase something.  That seems pretty commercial to me. On other words, why can we force people to engage in commerce? Because it’s commerce! We can’t force people to eat broccoli, or to exercise, or to limit their calories. But that’s a lot different from forcing people to buy broccoli, or buy a gym membership, &c. Sure, the broccoli example is stupid, and maybe there are other constitutional provisions (substantive due process?) that would strike it down, but you always hear conservatives talk about how just because a law is good, that doesn’t mean it is constitutional. The flip is necessarily true: just because a law is stupid, like the Mandatory Broccoli Purchase Act of (hypothetical) 2010, that doesn’t mean it is unconstitutional. Goodness, we have to rely on our representatives for something, right? Don’t pass stupid laws.

5. What about liberty?! — The action/inaction and action/purchase distinctions go toward the greater issue of individual liberty. Roberts repeatedly uses phrases like “compel citizens to act” when really what we are talking about is compelling citizens to purchase something. I think the language matters. To me, it seems like a much greater intrusion on my liberty when the government makes me do something or stop doing something, then when the government makes me pay something.

Which brings me to Wickard, the case that everyone seems to agree sets the outermost bound of Congress’s commerce power. According to Roberts, Wickard is about “a farmer’s decision to grow wheat for himself and his livestock” and Congress’s prohibition of that wheat production. Roberts sees this as beyond Wickard and therefore beyond what Congress can do.

In terms of individual liberty, however, the mandate seems much less onerous. In Wickard, Congress told a farmer that he could not grow wheat on his own land. In other words, it dictated what actions the person could or could not do on his own property. The Obamacare analog for Wickard would be a requirement that the farmer buy a certain amount of wheat. Now, what seems more of an invasion to you: a prohibition of doing something on your own property or a requirement that you buy something in a market? Seems like the prohibition is worse, at least to me.

And really, they are not all that different. By preventing the farmer from growing wheat on his own land, how was he supposed to get wheat if he wanted it? Well… he’d be forced to go into the market to purchase a product! He wanted to self-produce wheat, but Congress said he couldn’t. Under the ACA, some individuals want to self-insure, but Congress says they can’t. It doesn’t seem all that different to me.

6. Thoughts on the application of Raich. — Roberts doesn’t say much about Raich, which is strange. When he does write, he says the following: “Congress’s attempt to regulate the interstate market for marijuana would therefore have been substantially undercut if it could not also regulate intrastate possession and consumption.”

But isn’t that the same as this: “Congress’s attempt to regulate the interstate market for [health insurance] would therefore have been substantially undercut if it could not also regulate [individual’s insurance purchase decisions].”

Now, sure, in Raich nobody was mandated to do anything. Rather, they were prevented from growing marijuana in their homes. But that’s not the point. Once the Commerce Clause allows Congress to regulate people who have opted out of the interstate market and who are not engaging in any commercial activity, then Congress has the power to regulate those people in any way it chooses. It can tell them to stop or it can tell them to purchase.

7. Why was Roberts’s Commerce Clause opinion necessary? — Since Roberts upheld the mandate under the tax power, why did he go to such great lengths to argue that the mandate was not proper under the Commerce Clause? Ginsburg called that portion of his opinion a “Commerce Clause essay.” Hilarious. But is she right? Is it dicta?

Eh, not really. Roberts admits that his decision to uphold the mandate as a tax requires a somewhat tortured reading of the statute. But according to Roberts, such a reading is necessary and appropriate because the Court is supposed to, if possible, interpret statutes in a way that renders them constitutional. That’s part of the deference to Congress. According to Roberts, therefore, if the mandate was proper under the Commerce Clause there is no way he would have (or could have) twisted the language to make the mandate a tax. The only reason the tax holding was necessary was because there was no other, more natural, basis to uphold the statute. In other words, desperate times called for desperate measures.

8. So what parts of what opinions are binding? — Good question. Clearly, the part of the Roberts opinion that was joined by Ginsburg, Breyer, Sotomayor, and Kagan had five votes and is therefore binding precedent. So that’s easy. There were five Justices who wrote that the mandate was not within the commerce power. But no opinion on that point garnered five votes. There were only four joint dissenters and nobody joined Roberts’s opinion on the Commerce Clause. Also, there is an argument to be made that since Roberts upheld the mandate as a tax, his discussion on the Commerce Clause was dicta. (I disagree with that argument, but it’ll be made.) So in the end, while there are five votes for an action/inaction distinction in the Commerce Clause, no one opinion carried the day. On the Medicaid issue, Ginsburg and Sotomayor would have upheld the extension, while the other seven Justices voted to invalidate it in whole or in part. The four joint dissenters wanted to throw the whole thing out, while Roberts, Breyer, and Kagan held that only the unconstitutionally harsh penalty/compulsion provision (which allowed the government to withhold all funds for lack of compliance) needed to be invalidated and could be severed. So that portion of Roberts’s opinion, despite only getting three votes, is the one that controls on that issue.

9. Does any of this matter for future cases? — First answer: Who knows? It’ll depend on who is on the Court down the road. Second answer: I don’t think it’ll matter too much. The action/inaction distinction was a big fight in this case, but it doesn’t actually come up that much. And now that Congress knows the Court has adopted this action/inaction distinction, it can draft legislation accordingly — inducing non-actors to join the marketplace, taxing them if they don’t, or defining action/inaction in a way that won’t draw the Court’s ire. All you need to distinguish on commerce grounds is that the regulated individual is choosing or deciding to do something, and then you can force them to do something else related to that action — the growing of wheat, the growing of pot, the sailing on a ship, etc. The thing that was weird about the ACA, is that nobody chose to do anything; they just lived, got sick, got healthy, got sick again, and died. Nobody decides to do those things, so there was no choice to trigger regulation, which seemed to freak out the five Justices. That won’t be a problem in the future.

The decision on the spending power might have more teeth down the road, just because Congress actually uses that power all the time (unlike mandates) so I’m sure it will get some play.

10. Flotsam and jetsam. — The opinions together with the syllabus total 193 pages. Within those 193 pages were 12 references to broccoli. CNN totally botched the decision by reporting (with a huge headline!) that the mandate had been struck down. There was disagreement, as usual, about how to make Congress possessive. Ginsburg went with Congress’. Roberts went with Congress’s. The joint dissent went with Congress’ (which cuts against my crazy theory that Roberts secretly authored the dissenting opinion, or large portions of it, before he defected!). And if you’re a Star Wars fan, this “IT’S A TAX!” picture/meme is hilarious.

11. The Roberts Switch? — My thoughts on that are here and here. And if he did switch his vote to preserve the ACA, I think we should call it the switch in time that saved lives. Bam! The most reasonable take I’ve read on the potential switch is here.


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