July 9, 2012
Roberts Among the HouyhnhnmsBy Edward H. Stewart, Jr.
When an opinion as important as John Roberts' in NFIB v. Sebelius calls to mind Jonathan Swift's trashing of elitist doubletalk, something's gone seriously wrong at the Court. In one of political satire's greatest moments, Gulliver is told that he's been banished from Houyhnhnmland, and that because his Houyhnhnm master is being "duly pressed" to carry out the assembly's "exhortation," his departure "could not be put off much longer." Somewhat befuddled, the hapless Gulliver struggles to make sense of what sounds suspiciously like Roberts' sophistry on the taxing power:
A decree of the general assembly in this country is expressed by the word hnhloayn, which signifies an exhortation ... for they have no conception how a rational creature can be compelled, but only advised or exhorted, because no person can disobey reason, without giving up his claim to be a rational creature. (Jonathan Swift, Gulliver's Travels)
Sometimes in confusing situations, the best way to find out what something is is to find out what it isn't. In the case of Roberts' ObamaCare opinion, that means finding out that standing on one foot, saying "taxing power," and spinning around three times doesn't make the concepts of compulsion and restraints on federal power vanish in a puff of smoke.
Roberts' sophistry obstructs this process from the very beginning of his opinion, when he launches his analysis with a lecture on the structural limits of federal power. Oddly enough, he begins this lecture with a pronouncement that the Supreme Court is not charged with, and is in any case ill-suited for, restraining that power:
Resolving this controversy requires us to examine both the limits of the Government's power, and our own limited role in policing those boundaries. ... We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.[i]
And ends it with a restatement of that same argument:
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation's elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.[ii]
Surely Roberts doth protest too much. These may sound like a reasonable prescription for judicial modesty, but they are nothing more than excuses for copping out. The most obvious red flag is Roberts' assertion that political choices are made by "the people." Simply plugging in "the majority" for "the people" shows why this argument doesn't work. It implies that the power of the majority is absolute, assumes that elected representatives never act against the majority's will, and reduces constitutionality to a popularity contest.
There is, however, another fundamental flaw in Roberts' defense of judicial modesty: like the Houyhnhnms' devotion to exhortation, it denies everyday reality. Roberts describes the boundaries of federal power as if they pre-exist and are etched in stone, not defined by the Court in response to the other branches' political overreaching. This defies both the history of the Court and common sense, because the distinction Roberts tries to draw between the soundness and constitutionality of policy simply does not exist. At some point, it is the real-world effect not of the enumerated power itself, but of the policy it spawns that renders that policy unconstitutional.
The dissent's handling of the Medicaid expansion provides a classic example of what Roberts' "reasoning" on the taxing power is not: an analysis of how real-world effects eventually override general principles to trigger the restraint of federal power. The dissent's argument begins by stating the general case: the federal government has a spending power.
No one has ever doubted that the Constitution authorizes the Federal Government to spend money, but for many years the scope of this power was unsettled. The Constitution grants Congress the power to collect taxes to ... provide for the ... general Welfare of the United States.[iii]
Not only that, but under the general welfare clause, the federal government may make grants to the states:
One way in which Congress may spend to promote the general welfare is by making grants to the States. Monetary grants, so-called grants-in-aid, became more frequent during the 1930's.[iv]
But the spending power does not stop there:
When Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this.[v]
In turn, this general power to attach conditions extends the reach of federal power once again, so that:
[o]bjectives not thought to be within Article I's enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.[vi]
However, this does not mean there are no limits to the spending power. To the contrary, expanding federal power by placing conditions on grants raises serious structural issues. It is the real-world effect of this expansion of federal power over the states by means of the spending power, not the spending power in general, that creates the need to define constitutional limits:
This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress' Spending Clause power to pursue objectives outside of Article I's enumerated legislative fields is limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.[vii]
Having established the need for limits, the dissent then defines the standard conditional grants must meet. The conditions must be "unambiguous"; they must be "related to the federal interest in particular national projects or programs"; they "may not induce the States to engage in activities that would themselves be unconstitutional"; and they "may not cross the point at which pressure turns into compulsion." And when this last condition is met, "the federal-state relationship is in the nature of a contractual relationship" that is "voidable if coerced"[viii].
Since the dissent's Medicaid expansion analysis is a fine example of what Roberts' opinion is not, and since the taxing and spending powers are so intimately related, it should come as no surprise that Roberts hangs his conclusion that the individual mandate is within the federal taxing power on a false premise of "lawful choice."
Congress's authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation--especially taxation motivated by a regulatory purpose--can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.[ix]
Welcome to Houyhnhnmland. Roberts' obfuscation denying the reality of government compulsion in ObamaCare rises almost to the level of self-parody. As the dissent correctly points out, "Congress has impressed into service third parties" who would not be customers in order "to offset the undesirable consequences of the regulation." The dissent makes this point to demonstrate the mandate's abuse of the commerce power, since:
[i]f Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power.[x]
But this reasoning must certainly apply to the taxing power as well. The abuse that triggers the need for restraint is the real-world effect of the policy, not the taxing power in general. But Roberts relentlessly misrepresents the nature of that abuse. Under the individual mandate, the "lawful choice" is not one between paying or not paying a "tax." The individual taxpayer has no more choice to opt out of the health insurance market than the states had to opt out of the Medicaid expansion. Rather, having been compelled to participate in that market, the taxpayer is required to make a "lawful choice" between subsidizing health insurance by paying a "tax" for which he receives nothing and paying even more for health insurance he does not want or need. Regardless of his choice, he is subject to ongoing compulsion by the government and bound to the market's pricing mechanism.
Roberts, of course, is not without empathy. He does not "make light of the severe burden" the mandate imposes. He's just not going to call it what it is, or do anything about it. Constitutional protection of individual liberty has run afoul of politics, and politics has won.
And that tells us, unequivocally, what Roberts' opinion is.
[i] 567 U.S. _____ (2012), at 2, emphasis added.
[ii] Id., at 6, emphasis added.
[iii] Id., Scalia, Alito, Thomas, and Kennedy, JJ, dissenting, at 29.
[iv] Id., at 30.
[v] Id., at 31, emphasis added.
[vi] Id., at 32, internal quotes omitted.
[vii] Id., references and internal quotes omitted, emphasis added.
[viii] Id., at 33.
[ix] 567 U. S. _____ (2012), at 43-44 (emphasis added).
[x] Id., Scalia, Alito, Thomas, and Kennedy, JJ, dissenting, at 8.
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