Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How Justice Kennedy’s ACA Decision Could Roll Back Congress’ Power to Regulate Commerce…But Uphold the Act in its Entirety
Most readers of this blog know that the second day of oral argument over the Affordable Care Act brought the government a basketful of bad news. All of the conservative justices who spoke, including Justice Kennedy, seemed fairly hostile to the government’s framing of the case. Kennedy pressed repeatedly the plaintiffs’ claim that the Act forces purchasers into a new market, a market for insurance, which they wouldn’t necessarily have chosen to enter on their own. Though later in the argument he mused that perhaps two markets could be so closely related that compelled entry into one could be necessary for regulation of the other, things still looked bleak for the Government. Kennedy seems to have a fairly strong sense that the Commerce power doesn’t reach as far the Government suggests, and assuming his fellow conservatives reach the merits he certainly has four other votes for that proposition.
As Jack suggested a few days ago, that does leave the possibility that the Court could still uphold the Act as an exercise of the taxing power. I’ve said elsewhere why I think the taxing power argument is persuasive; what I want to add here is that I think it could be an appealing way for the Court to have its Commerce cake and eat it, too.
In brief, upholding the statute under the taxing power would allow the Court to issue a genuine holding---not just dictum---narrowing the scope of the Commerce power, while at the same time avoiding the unpredictable mess that invalidating the statute would bring. In addition to potentially flammable political blowback, tossing the Act in whole or part could throw the health sector --- 1/6 of the economy, and even larger share of many state budgets--- into total chaos. At argument, Justice Kennedy sounded ready to reap that whirlwind if that was what it took to make his point about the limits of federal power, but maybe he doesn’t have to. Upholding the statute under the taxing power would give the Court a chance to make binding law on the Commerce power issue because the Commerce question can easily be constructed to be logically prior to the taxing power question. How? Well, suppose first the Court is inclined to set aside the taxing power argument because it thinks the more persuasive reading of the statute is that Congress didn’t intend to rely on the taxing power. (That assumes Congress’ choice of which constitutional provision to invoke is even relevant, but let’s set aside that issue for now.)
Jack & I both signed an amicus brief (together with Gillian Metzger, Trevor Morrison, and Ed Kleinbard, and aided by the expert craftsmanship of Andy Pincus and his team) arguing that the Court can’t just stop at the most natural or most likely reading of the statute. We invoked the doctrine of constitutional avoidance, which instructs that the Court must read a statute in a way that makes the law constitutional if it’s possible to do so. Even if the avoidance reading isn’t the most natural or most persuasive understanding of Congress’ intent, if that’s what it takes to save the statute, the Court has to do it. (And, in fact, the avoidance canon only matters when it requires the Court to pick a less-natural reading, otherwise it wouldn’t do any work.) Since it’s at least possible to read § 5000A (the so-called “mandate,” which is actually just a modest financial incentive) as a tax, and doing so here leads to a ready conclusion that the statute is constitutional, that’s what the Court ought to do, we said.
But notice the logical predicate for our argument. The avoidance canon only comes into play if the less-natural reading is the only way to save the statute. So, before the Court can invoke the avoidance canon, it first must decide whether there is some other way to uphold the statute. That means that any ruling that depends on the avoidance canon also must include an analysis of the Commerce power. And that means that anything the Court wants to say about the Commerce power --- that cognizable limits on it are necessary to human freedom, let’s say --- would necessarily be part of its holding, not just a colorful aside.
As a side note, our reliance on the avoidance canon also explains how the Court could reconcile decisions both to reach the merits of the case and also to consider the taxing power. The Anti-Injunction Act bars suits to enjoin the collection of a “tax.” The most natural reading of § 5000A may well be that it is not a “tax.” And that could be true for both the AIA [Tax Anti-Injunction Act] and Article I, § 8 of the Constitution, which gives Congress the power to “lay and collect taxes….for the general welfare.” When it comes to the Constitution, though, the Court has to set aside this “best” reading in favor of a less-likely but still plausible reading. Since the avoidance canon doesn’t apply when the Court interprets the AIA, it makes sense for the Court to hold that §5000A is a “tax” for one purpose but not another: because the rules of interpretation are different.
I should also say that in upholding the Act under the taxing power the Court wouldn’t be undermining its efforts to narrow federal commerce authority. For one thing, the Court could easily also set out some limiting principles on the taxing power, along the lines sketched nicely by Bob Cooter and Neil Siegel, that would be fully consistent with § 5000A. I’ve also suggested a number of ways in which the power to tax & spend is far more limited than the Commerce power. For example, when other actors know that an enactment is beyond Congress’s Commerce powers, taxing & spending become prohibitively expensive, because other actors know that Congress cannot proceed without their consent.
To sum up, it seemed from oral argument as though some of the conservative justices were struggling to reconcile two conflicting impulses: on the one hand to vindicate their strongly-held views about the appropriate scope of national power, and on the other to avoid the huge mess that invalidation would surely produce. It’s a choice they don’t have to make.