The Blog

Marshalling Precedent: With Nod to Predecessor, Roberts Affirms Mandate

2:05 PM, Jun 28, 2012 • By ADAM J. WHITE
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

In September 2009, President Obama disagreed vehemently with the notion that the Affordable Care Act's individual mandate was a tax: "A responsibility to get health insurance is not a tax increase," he told George Stephanopolous. And even on the eve of oral argument, the president's Office of Management and Budget told Congress that the mandate was not a tax.

John Roberts

Nevertheless, the Justice Department made precisely the opposite argument in the federal courts, and that argument ultimately persuaded the Supreme Court. Today, the Court held that the individual mandate is a lawful exercise of the Constitution's tax power.

The decision was 5-4—or, more accurately, 4-1-4. Chief Justice Roberts's lead opinion created a 5-4 majority holding that the individual mandate was not a constitutional exercise of the Commerce Clause power, and a 5-4 majority holding that the mandate was a constitutional tax.

The decision's details will be parsed endlessly, in terms of both legal doctrine and political ramifications, but in the end it stands for something much more historically significant.  

Since Roberts's appointment as chief justice in 2005, commentators have noted time and again his appreciation of the Court's history, and specifically his appreciation of Chief Justice John Marshall. Roberts occasionally highlights the point himself.  

At his confirmation hearings, he pointed not just to Marshall's Commerce Clause opinions, which "were important in binding the Nation together as a single commercial unit," but also to Marshall's interpretation of the "General Welfare" (i.e., taxing and spending) Clause, as a grant of power to Congress "broad enough to confront the problems that in Chief Justice John Marshall’s case were confronted by a young nation and helped to bind it together as a nation and broad enough today to confront the problems that Congress addresses."

Of course, the Marshall comparisons did not end with his confirmation. Roberts himself occasionally noted that he looked to Marshall for inspiration. "I’ve been reading a lot of biographies of chief justices and learning a lot about them," he told an interviewer in 2007.  

Marshall's shadow loomed large throughout the Obamacare case. And in his opinion today, Roberts himself acknowledged that, opening his opinion with Marshall's seminal lines from Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden.

But today's decision connects Roberts to Marshall not because of what Roberts said, but because of what Roberts did. Roberts's decision today echoes Marshall's defining moment in Marbury v. Madison, in which the chief justice handed the president a nominal victory, but in so doing also confirmed the Constitution's limits on the federal government's power.

In Marbury, Marshall nominally ruled in favor of President Jefferson, holding that the Court would not overturn Jefferson's controversial decision to rescind appointments made by his predecessor, President Adams. But by asserting the Court's power to make even that decision, Marshall firmly established the Court's power of judicial review, a fundamental protection for the Constitution's limits on the federal government.

The chief justice's opinion today accomplishes a similar feat. Roberts concludes that Obamacare's individual mandate is a "tax," and therefore a lawful exercise of the Constitution's taxing power. But by also concluding that the individual mandate is not a lawful exercise of the Commerce Clause power, Chief Justice Roberts creates a five-justice majority that thwarts President Obama's attempt to create an unprecedented, unlimited expansion on the federal government's regulatory power.

And so Chief Justice Roberts silences those on the left who would (and did) accuse him of "judicial activism," yet he reaffirms the Commerce Clause's limits, and he simultaneously hands President Obama a difficult political choice: The president can now claim vindication over the mandate, but only by agreeing that the mandate is an immense increase in Americans' income taxes.

Turning to the specifics of the issues before the Court, Roberts's opinion firmly rejects the administration's primary argument: Namely, that the Commerce Clause authorizes the federal government to "mandate" that all Americans buy health insurance. The Commerce Clause allows Congress to "regulate" commerce, but the Court holds today that to "regulate" commerce is not to "mandate" it:

The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated. 

... 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. 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.

... 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. 

That is not the country the Framers of our Constitution envisioned. 

On these points, Roberts is joined by Justices Scalia, Kennedy, Thomas, and Alito, who agree the Commerce Clause does not empower Congress and the president to mandate commercial activity. Highlighting the administration's failure to identify any principle that would limit the Commerce Clause's reach if the mandate were sustained, the four justices conclude that, "whereas the precise scope of the Commerce Clause and the Necessary and Proper Clause is uncertain, the proposition that the Federal Government cannot do everything is a fundamental precept."   

Moreover, those four justices, and Chief Justice Roberts, agree that the Constitution's "Necessary and Proper Clause" does not stretch far enough to support the mandate.  

But the chief parts ways with those four justices on the tax question, and instead joins Justices Ginsburg, Breyer, Sotomayor, and Kagan in holding that the mandate is a constitutional tax. Even though the president himself strongly rejected the notion that the mandate is a "tax," the Court today approves the president's post-enactment defense of the statute as a tax. Even on this point, the Chief Justice injects a skeptical note: "The most straightforward reading of the mandate is that it commands individuals to purchase insurance." The liberal justices pointedly decline to join the Chief's skeptical note.

Nevertheless, the chief continues:

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below. 

Describing the Court's taxing power precedents as requiring a "functional approach," Roberts (now with the four liberal justices) concludes, "the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty." Most importantly, "the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution."  

And so, "[w]hile the individual mandate clearly aims to induce the purchase of health insurance, 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. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law." 

As such, Roberts and the others conclude, "[t]he Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness."

The Court reaches other issues as well. Before even reaching the merits of the case, the Court needed to conclude that it had jurisdiction at all—specifically, it had to consider whether the Anti-Injunction Act barred the Court from hearing the case before the Internal Revenue Service begins collecting the tax. On this point, the Court is unanimous: the individual mandate is not a "tax" under the Anti-Injunction Act, and therefore the AIA does not apply to bar this case.  

Obviously, that conclusion may at first glance seem to conflict with the Court's holding that the mandate is constitutional precisely because it is a tax.  But, as Chief Justice Roberts explains, the AIA's definition of a "tax" need not be the same as the Constitution's definition of a "tax":

It is of course true that the [Affordable Care] Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. 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.

The mandate was not the only Obamacare provision before the Court. The plaintiffs had also challenged the "Medicaid expansion." And on that point, the Court holds—somewhat surprisingly—that Obamacare's "Medicaid expansion" is unconstitutional. Specifically, seven justices—all but Ginsburg and Sotomayor—agree that Congress cannot lawfully coerce the states to expand Medicaid coverage by threat of rescinding the federal government's current financial support for the states' Medicaid programs.

Those seven justices split on the question of remedy, however—Roberts, Breyer, and Kagan would strike down only the provision that allows the federal government to rescind funding, while Scalia, Kennedy, Thomas, and Alito would have struck down the Medicaid expansion altogether. Ultimately, Roberts, Breyer and Kagan were joined by Ginsburg and Sotomayor on this narrow point, striking down only the punitive provision, and leaving the rest of the Medicaid expansion intact.

A final note: There will be much debate over whether the Court actually "held" that the mandate is not a constitutional exercise of the Commerce Clause power. While five justices agree on that point, the issue is not essential to the Court's ultimate judgment—that is, it had no effect on the Court's bottom-line decision that the mandate is constitutional—and so some may argue that the Commerce Clause analysis is simply nonbinding "dictum." Indeed, the four liberal justices criticize Roberts for reaching the Commerce Clause question at all.  

But Chief Justice Roberts cleverly rebutted their criticism: Because the mandate "reads more naturally as a command to buy insurance than as a tax," the Commerce Clause justification would have to be rejected before the Court could properly reach the more difficult tax question. "It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question."

And so President Obama can now claim victory—he succeeded in enacting a major tax increase, over the overwhelming opposition of House and Senate Republicans. Somewhere, John Marshall smiles.

Adam J. White is a lawyer in Washington, D.C.

Recent Blog Posts

The Weekly Standard Archives

Browse 18 Years of the Weekly Standard

Old covers