Ilya Shapiro: We won everything but the case

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I could never have imagined that the Supreme Court’s ringing endorsement of the legal theory I’d pushed for more than two years could feel this hollow. That is, five justices agreed in no uncertain terms that the federal government cannot require people to buy something, cannot regulate inactivity and cannot impose economic mandates as a means of regulating interstate commerce. And yet, Obamacare stands.

The Supreme Court went further than any lower court that ruled against the government. Not only did the court for the first time endorse the activity/inactivity and regulate/mandate distinctions that our opponents derided as appearing “nowhere in the Constitution,” but seven justices found the Medicaid expansion unconstitutionally coercive of state sovereignty. And yet, Obamacare stands.

How did this happen? Chief Justice John Roberts put a new gloss on Congress’s taxing power just as he rediscovered the meaning of the Commerce, Necessary and Proper, and Spending Clauses. In 13 cryptic pages, Roberts fashioned a not-quite-silk purse out of a sow’s ear, salvaging — to continue the porcine metaphor — Obamacare’s bacon from the constitutional flames.

That is, the Chief Justice re-characterized a provision explicitly stating that people “shall” obtain health insurance or pay a “penalty” into a “choice,” a “tax citizens may lawfully choose to pay in lieu of buying health insurance.”

Roberts went on to cabin his taxing-power justification in such a way as to make it seem that this ticket would be good only for this train; the tax is not so burdensome as to be punitive, is enforced through normal tax collection, and merely encourages rather than requires certain behavior.

Moreover, this voluntary unicorn-like tax is not a “direct” tax — which the Constitution says must be drawn such that each state pays in proportion to its population — because it’s neither a tax on property nor a “capitation” (defined as “a tax that everyone must pay simply for existing”). Instead, Roberts explains, this novel tax is triggered by a specific circumstance: “earning a certain amount of income but not obtaining health insurance.”

I guess that means it’s an excise. But excises are taxes on a use of property, a transaction, privilege or activity, and here Roberts has already recognized there’s no property, transaction or activity involved. You just have this condition — not owning health insurance — that triggers the tax. Does that mean that being free from a government command to buy health insurance is a privilege?

The point is that the opinion’s taxing-power section is a complete head-scratcher. Even Justice Ruth Bader Ginsburg expressed some disbelief at Roberts’ theory in orally summarizing her partial dissent on behalf of the no-limits-on-federal-power bloc.

It seems odd to have a result whereby Congress cannot make you buy something but can tax you for not buying it. As Roberts himself wrote, “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.”

Nevertheless, we’re left with a definitive ruling that Congress can’t make you buy broccoli — Roberts was clear on that, explicitly rejecting the government’s pooh-poohing of that infamous hypothetical — but can tax you for not buying broccoli. That’s a constitutional distinction without a practical difference.

Nor did John Roberts vindicate his constitutional legerdemain by rewriting the Medicaid expansion to tie only new federal funding to an acceptance of burdensome and fundamentally transformative regulations. While correct on its face — and a good exposition of the Spending Clause and what strings the federal government can attach to its funds — his analysis on that point is relevant only to a hypothetical statute, not the one that Congress actually passed.

In sum, we take away from NFIB v. Sebelius the comfort that the federal regulatory authority recognized in Wickard and Raich has not been expanded and that the federal government can’t compel states to do its bidding. The size and warmth of that comfort will be determined in future cases, which will come when Congress inevitably again pushes the envelope of its enumerated powers.

But is federal overreach inevitable? Will the people ever rein in their elected representatives? That’s the ultimate question left by the baby-splitting of a chief justice who, after doing so much good work, ultimately refused the charge given him by his model, Chief Justice John Marshall, to say what the law is.

“It is not our job to protect the people,” Roberts wrote, “from the consequences of their political choices.”

OK then. People, the ball is in your court. How much longer will you allow Obamacare and other offenses against the Constitution and good sense to stand?

Ilya Shapiro is a senior fellow in Constitutional Studies with the Cato Institute and editor-in-chief of Cato Supreme Court Review who filed several briefs in the Obamacare case. Shapiro will make a special presentation to The Steamboat Institute’s 1773 Club on Tuesday. Email info@steamboatinstitute.org for information.

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