Sunday, March 31, 2019

In Defense of the Chief Justice's Execution of His Responsibilities in NFIB v. Sebelius

Neil Siegel

As Mark Tushnet's astute post points out, Joan Biskupic's recent biography of Chief Justice John Roberts does not actually establish that the Chief Justice changed his mind on any constitutional question in the case, let alone that he moved from doing "law" to doing "politics." It is all the more unfortunate that unsupported accusations about the Chief Justice's "political" behavior in NFIB v. Sebelius keep being made when he was right on the law in upholding the minimum coverage provision in the Affordable Care Act (ACA) as a condition attached to a federal tax (the shared responsibility payment) that was valid because non-coercive.

The Chief Justice was right on the law in another, related way. He ultimately resisted as dispositive the rhetorical framing of the constitutional debate by opponents of the minimum coverage provision as either Commerce Clause legislation or unconstitutional. It is easy to forget now how brilliantly those who sought to bring down the ACA captured the public imagination and even the legal culture with their broccoli hypothetical and commerce-or-nothing characterization. The very term "individual mandate," which is not in the statute, implies that the only enumerated power available to Congress was the Commerce Clause (or the Necessary and Proper Clause). A different phrase, such as "modest financial incentive to obtain a minimum level of health insurance," which is what the statute actually accomplished, does not similarly scream commerce or nothing.

While NFIB was pending before the Court, I participated in a moot court on the case for the public at the National Constitution Center in Philadelphia. I served as a "Justice," along with Tom Goldstein and a number of current and former federal judges. After the rest of the large panel had voted to either uphold or invalidate the "mandate" under the Commerce Clause or the Necessary and Proper Clause, I pointed out that my fellow judges who voted to invalidate needed to explain why the Taxing Clause also was unavailable. That independently sufficient source of constitutional authority simply was not on their radar.

Three days before the decision came down, I was at the Arizona Bar Convention making essentially the same taxing power argument for the so-called mandate that the Chief Justice adopted. (Robert Cooter and I first discussed our then-forthcoming paper on the topic on Balkinization on March 19, 2012; Biskupic reports (on p. 238) that Roberts turned to the taxing power in mid-April). One of my opponents at the debate responded that my taxing power argument was a loser; that no court had accepted it or would accept it; and that we should get back to the matter at hand, which was the Commerce Clause.

If Biskupic's reporting is accurate, it appears that the Chief Justice, too, initially focused on the Commerce Clause (and, presumably, the Necessary and Proper Clause) and concluded (incorrectly, in my view), that they were unavailable to Congress. But then, unlike so many others, he disciplined himself sufficiently to execute his full legal responsibilities in the case. What about the Taxing Clause, he asked himself? He should be applauded, not condemned, for doing his job.

I wonder--and this is speculation on my part--whether the Chief Justice's views on the Taxing Clause informed, and were informed by, his views on whether Congress's conditional spending power permitted the Medicadid expansion. Biskupic writes (on p. 239) that "at the same time" that "Roberts was crafting an argument that would support the individual mandate based on Congress's taxing authority," "he began incorporating arguments that would invalidate the Medicaid expansion." Both questions turned on the issue of coercion. Individuals are entitled not to be coerced when Congress uses its taxing authority. That entitlement inheres in the constitutional requirement that exercises of the taxing power be consistent with (as opposed to motivated by) revenue raising. Taxes raise revenue just because they do not prevent the assessed conduct.

It is less clear how an exercise of the conditional spending power can coerce states when states are not entitled to any federal funds, as Justice Ginsburg emphasized in her dissent on that question. But regardless of whether one is persuaded by the Chief Justice's answer--that (as Sam Bagenstos has interpreted his opinion) coercion exists when Congress conditions continued receipt of a huge amount of federal money in an entrenched program on the agreement by states to participate in a separate and independent program--there is again no reason to believe that the Chief Justice was doing anything other than struggling toward his own best understanding of the Constitution. And unlike the position adopted by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, which was so broad that it would render it impossible to distinguish coercion from the offer of a lifetime, the Chief Justice's position had the critical legal virtue of being professionally responsible.

What does it say about the times in which we are living that the only Justice who voted against ideological and partisan interest on most of the constitutional questions in NFIB is the one who stands accused of having behaved politically by those on both sides of the constitutional debate?

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