an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Initial reports by CNN and Fox News reporting that the Affordable Care Act (ACA) had been struck down notwithstanding, the world now knows the Supreme Court voted to uphold the ACA in nearly every respect. In brief, I think the Court reached the right outcome on the individual mandate, and Chief Justice Roberts did the right thing in voting to uphold it. We learned there is still a difference in this country between politics and law. And the Court, albeit by a bare 5-4, knows it when it sees it.That said, the case produced nearly 200 pages worth of opinions from the justices, and they are chock full of interesting and important things to discuss. In no order of priority and purely in the interest of starting somewhere, a few initial thoughts.
A Little Kremlinology
As a blogger or two have noted, the joint dissenting opinion by Justices Scalia, Kennedy, Thomas and Alito refers repeatedly to Justice Ginsburg’s opinion (most of which was also joined by Justices Kagan, Sotomayor, and Breyer) as a “dissent.” In the official court syllabus, Ginsburg’s opinion is called an opinion “concurring in part, concurring in the judgment in part, and dissenting in part.” Was this an error by the joint dissenters? Evidence that a majority of the Court had been planning to overturn the ACA, that the joint dissent was itself initially a majority opinion, and that Chief Justice Roberts’ vote changed at the last minute, leaving the Court to scramble to revise and correct all of its opinions (corrections it wasn’t fully successful in making)?
Well, maybe. Justice Ginsburg’s opinion goes both ways, so to speak. Still, it is a bit odd that the primary dissent refers to an opinion substantially concurring with the Court’s judgment as a “dissent,” rather than, say, a concurrence, or probably better given Ginsburg’s mixed conclusions, the “opinion by Justice Ginsburg.” Standing alone, I’d say curious, but perhaps not dispositive. But then one might also note a few curious features of the dissent itself that one might be able to blame on hasty (re)drafting. The dissenters complain (Dissent Slip. Op., at 65) for example, that “[i]t should be the responsibility of the Court to … remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment.” By which the dissenters mean, I am confident, “the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government,” (Opinion of Roberts, C.J., Slip. Op., at 3) which is precisely as Chief Justice Roberts puts it in the first paragraphs of his opinion. Did the dissenters just miss that part? Or were they upset the other justices didn’t join that piece of the Roberts opinion? Otherwise, given the prominent place this point is given, a bit hard to see their complaint.
Likewise, note that one of the dissenters’ complaints about the Court’s reading of the mandate as a tax was that it created, in the dissent’s view, another complex constitutional question about whether the mandate was a “direct tax” (and if so, subject to other constitutional restrictions). Reading it this way, the dissent notes, doesn’t avoid a constitutional question at all (as Roberts argued it did) but rather substitutes one constitutional question (the statute’s legality under the Commerce Clause) for another (the statute’s legality under the direct tax clause). The majority of course has an answer for the direct tax problem as well. What’s the dissent’s complaint about that answer? That the majority resolves the direct tax issue “with inadequate deliberation.” (Dissent Slip. Op., at 64). Not inadequate explanation in the opinion, but – despite truckloads of briefs, 6 hours of oral arguments, and 3 months of post-argument time for discussion – inadequate deliberation. As Justice Souter would’ve said, passing strange…
Was there a last minute switch? Certainly wouldn’t be the first time such a thing happened in a major case (see, e.g., Planned Parenthood v. Casey – the 1992 decision many had anticipated would reverse Roe v. Wade). It may take a while, but someday, this part of the story we will actually know. Much else to say about other aspects of the dissent, but for now, on to –
Roberts’ Reasons & the Commerce Clause
This brings us to the strength of Roberts’ arguments for reading the mandate as a tax. I should emphasize first that I wholeheartedly agree the mandate is a constitutional exercise of Congress’ tax power. (I also think the mandate is a constitutional exercise of Congress’ Commerce Clause power, more on which below.)
That said, Roberts himself takes a trickier position, finding the mandate an unconstitutional exercise of the Commerce Clause power but constitutional under the tax clause. It is Roberts’ singular opinion on this point (unjoined by the other majority justices) that gives the Court 5 votes for the proposition that the ACA wouldn’t pass muster under the Commerce Clause.Aren’t all the opinions (the dissent + Roberts’ opinion for himself) concluding that the mandate exceeds the Commerce Clause power just dicta? That is, views put forward by the Court not necessary to the holding of the case – and in that sense not legally binding? There were 5 votes for the proposition that the mandate is constitutional as a tax. What does it matter that the mandate would be unconstitutional if passed solely under the Commerce Clause power? I bet the Court would also find it unconstitutional if passed solely under Congress’ power under Section 5 of the 14th Amendment, or Congress’ power to declare war. So what?
Justice Roberts takes this on, in what reads as an attempt to insist that the Commerce Clause opinions are not just dicta. The statute, Roberts argues, “reads more naturally as a command to buy insurance than as a tax.” I’m only reading it as a tax, he says, to avoid a reading that would raise a constitutional question – a classic and commonly applied rule of statutory interpretation. (Opinion of Roberts, C.J., Slip. Op., at 44) I’d be marginally more sympathetic to this argument if Roberts hadn’t also taken the position a few pages earlier (in his Anti-Injunction Act discussion) that for purposes of assessing the constitutionality of an exercise of congressional power, it doesn’t matter what the statute says, it matters what the statute does. I’d also be more sympathetic if it was the Court’s habit in applying the canon of constitutional avoidance to decide the constitutional question before avoiding it. Typically, the Court notes that a constitutional question would be raised by one reading of a statute, and then construes the statute to avoid that reading precisely so it doesn’t have to opine on the meaning of the Constitution more than necessary to the outcome of the case – for all those reasons of judicial modesty they all write so much about so often. (Cf. Pearson v. Callahan.)
As it is, I think Roberts’ opinion on the Commerce Clause is non-controlling, non-binding dicta.So does this really matter? Well, a bit. The distinction should matter to litigators and the lower courts as they address other Commerce Clause issues in the early stages. And to students of constitutional law. In practical terms, however, I’m sure Congress is going to take great care to attend to these non-controlling opinions next time it considers passing legislation that looks anything like the mandate under the Commerce Clause power. Still. Do these Commerce Clause opinions definitively clarify the law, or put an end to Commerce Clause litigation under the Constitution? Not even close.
The Hair’s Breadth of Difference Between the Majority and Dissent
Set aside 200 pages of opinions and a bunch of judicial rhetoric about freedom and federalism. (Especially set aside the bizarrely naïve and ill-advised comment by the dissent that having the residents of some states pay federal taxes that effectively subsidize the residents of other states creates a “destabilizing political dynamic…antagonistic to a harmonious Union….” Guess they haven’t seen those blue state/red state tax burden charts….)
Both the majority and the primary dissent agree that if Congress wants to make people pay taxes to help finance health care in this country, Congress has the power to do it. Period.
So what’s this all about? The dissent’s central complaint is not that Congress couldn’t achieve precisely the effect of the ACA under its tax power, but that Congress called the financial sanction for not buying insurance a “penalty” rather than a “tax.” As the dissent argues, the framers required tax bills to originate in the House because it is “the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election.” (Dissent Slip. Op., at 24-25) If the statute doesn’t say it’s a tax, how will legislators and their constituents know that is in fact what they’re getting, how will constituents be able to hold their legislators responsible for that “terrible price”? As I’ve written here before, I think this argument in this context is, to say the least, unpersuasive. Congress knew exactly what the mandate was when it passed it. The voters know – have had and will have every conceivable opportunity to know – exactly how the mandate applies to them. This action is not secret. This law is not aimed at a discrete or insular minority. And today, thanks in no small measure to the Court itself, it is hard to imagine a democracy more focused on what Congress does and what it all means than ours has been about health care. Posted
by Deborah Pearlstein [link]