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Marshalling Precedent: With Nod to Predecessor, Roberts Affirms Mandate

2:05 PM, Jun 28, 2012 • By ADAM J. WHITE
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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." 

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