Marshalling Precedent: With Nod to Predecessor, Roberts Affirms Mandate
2:05 PM, Jun 28, 2012 • By ADAM J. WHITE
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:
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:
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."