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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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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.

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