It's a Tax/It's Not a Tax: ObamaCare Explained

Matthew Franck has defended Chief Justice Roberts' opinion thusly:

I am more convinced than ever that Roberts has a fully plausible case that can be defended on principled grounds.  That is not the same as an endorsement of its merits. ... But I do think that people might, just might, give him some credit for doing his duty to the rule of law as he understands it.

Moreover, Mr. Franck says:

Every real difference between Roberts and the four joint dissenters comes down to ... this.  Which is the most compelling reading of the mandate -- the most natural reading ... or the most favorable reading of its language ...?

The joint dissenters chose the first option, of the most natural reading.  Roberts chose the second option, of the most favorable reading.  This, for reasons he gives at length, strikes him as the soundest way to proceed, consistent with the judicial duty never to hold an act of Congress unconstitutional that need not be held unconstitutional if it can be saved on any plausible reading.  [Emphasis in original.]

Lester Jackson, writing here, is not impressed with Mr. Franck's analysis.  He seems to think Mr. Franck has to simultaneously believe intellectually incompatible things -- that Mr. Franck believes:

1. Congress constitutionally enacted what was unconstitutional.  It had no power to impose the individual mandate per se, but it constitutionally exercised its tax power as a bludgeon to compel indirectly acceptance of what it had no power to compel straightforwardly -- and despite its repeated and explicit denial that it was imposing a tax and would raise no revenue if everyone complied.

2. The Act was simultaneously not a tax and a tax -- as stated by the dissent, "the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution.  That carries verbal wizardry too far[.]"

3. It is not the Court's "job to protect the people from the consequences of their political choices," except of course when it is the Court's job, which is to not "abdicat[e] in matters of law."

With all due respect, Mr. Jackson doesn't have it quite right.  In this article, I shall address only the first two of Mr. Jackson's arguments.  So, if I may carry the torch for Mr. Franck...

Let's take point one -- i.e., that Mr. Franck believes:

1. Congress constitutionally enacted what was unconstitutional.

This certainly has a nice ring to it, and I am all about clever turns of phrase.  Unfortunately, it takes no intellectual gymnastics to understand that what Congress may not do under one power, it may do under another.  Thus, no one would argue that Congress has the power to open a post office according to the power to provide and maintain a navy.  Yet, clearly, Article I, Section 8, Clause 7 provides the power to open a post office, whereas it's Clause 13 which provides the power to build and maintain a navy.

The same can be said for ObamaCare; it's sustainable under the taxing power but not under the Commerce or Necessary & Proper clauses.  We may dislike the result, but it is hardly lawless, as some have argued, for Chief Justice Roberts to find support for a law under one power, but not another.

It is beyond the scope of this article to comprehensively put forth grounds supporting ObamaCare under the taxing power, but I would like to note, as I did here at American Thinker on July 7, what Joseph Story opined in his 1833 Commentaries on the Constitution:

Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motives and grounds wholly beside the intention of the constitution.  The remedy, however, in such cases is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided in the constitution itself.  Story, Commentaries, 1:sec. 374.

I don't think many would quibble with the assertion that Joseph Story is one of the most renowned scholars on American constitutional law.  Indeed, Chief Justice Roberts cites the former United States Supreme Court justice twice -- once for the proposition that the court should, if possible, read a statute in a way that doesn't violate the Constitution (NFIB v. Sebelius at 31), and once for the proposition that the taxing power is often used for purposes other than revenue (Id. at 36).

I cannot account for why the chief justice failed to use the quotation above.  It's probably safe to say that one would never intentionally fail to cite Joseph Story when on point.  Perhaps this is the  most revealing evidence that Justice Roberts may have been scrambling to cobble together an opinion he changed at the last minute.

Point two of Mr. Jackson's argument is not so easy to dispense.

2. The Act was simultaneously not a tax and a tax[.]

It is indeed a mind-twister and has all the appearances of being the double-speak Mr. Jackson says it is.  But much of the confusion is because the chief justice dealt with two "is it a tax?" questions.

In the first "is it a tax?" question, Roberts dealt with a federal law called the "Anti-Injunction Act" (AIA), which prohibits lawsuits from challenging any federal law that is called a "tax."  The AIA is intended to prohibit someone from stopping the law, "enjoining it," until such time as an aggrieved party actually pays the tax.  It's to protect the revenue stream to the government.  The thought is, you don't get to challenge the law until you pay the tax.

The AIA was at issue because, of course, no one had (or has yet) paid the "tax," and the Supreme Court had to figure out if the entire NFIB v. Sebelius suit was ripe for adjudication.  Roberts met the argument by noting that Congress chose to allow a challenge to ObamaCare by avoiding, for the purposes of the AIA, to call it a tax.  Roberts said, at page 12 of his opinion (citations omitted):

Congress, ... chose to describe the "[s]hared responsibility payment" imposed on those who forgo health insurance not as a "tax," but as a"penalty." ... There is no immediate reason to think that a statute applying to "any tax" would apply to a "penalty." (NFIB v. Sebelius)

Thus, the suit to challenge the law was ripe, and the Court was able to proceed to the merits.

I admit that it's dubious to suppose that Congress intentionally provided an avenue for conservatives to challenge a law it did everything in its power to protect.  Yet, from a practical standpoint, no one on earth wanted this case to vanish on procedural grounds, least of all conservatives.  So Roberts, if I may, "pushed the envelope" a touch to find authority to reach the merits.  And at least this can be said, or asked: who among us would be crying foul on this point had Roberts sided with the conservatives?

The second "is it a tax?" question pertains to the constitutional question of power.  This is a different issue, one of nuance, and Roberts was right to note it.  Regardless of what Congress intended with respect to applicability of the AIA, there remains a constitutional question of "what is this thing?"

And here, evaluating what the thing is, Roberts applied usual analytical tools: if it looks like a tax, smells like a tax, walks like a tax, and is collected like a tax by the people who usually collect taxes...well, the dang thing must be a tax.

Regardless of what Congress called it.

So, as it happens, the mandate is not treated as a tax for the purposes of the AIA (thus allowing the court to go to the merits), and yet the dang thing really is a tax for the purposes of constitutional law.  It's nuanced, to be sure.  But such is the life of adjudicating constitutional matters.

Oh, I know this is vexing.  I don't like ObamaCare any more than the rest of you.  Indeed, I wrote an article on one small aspect of the law's vice back in 2009 (see Obama-Daschle Plan).  And I can hear, already, the invectives coming my way, as they did for the article I published here back on July 7 (my goodness, that article was even picked up by websites "exposing" liberal whoppers!).

But the fact is, Roberts had good authority for his ruling.  Moreover, there is more than a little to be thankful for.  Constitutional law expert Dave Kopel has catalogued the "Bar Review" points coming out of the case at SCOTUSblog.  He notes, in particular, that future cases on the Commerce Clause will need to involve an "activity."  That is, inactivity cannot be so regulated.  Moreover, the abomination that is Wickard v. Filburn, 317 US 111 (1942), "should be seen as marking the furthest boundaries for the reach of the Commerce Clause."  Finally (and this isn't really "finally," as Professor Kopel's article is much more extensive), the Spending Clause cannot be used to coerce States to enact laws demanded by Congress.

That's something, at least, for conservatives to be happy about.  And as Joseph Story instructed, our next stop is an appeal to the people at the elections.

Oh, and I'd say we might also consider Story's suggestion, quoted above, about the "salutary power of amendment, provided in the constitution itself."

Mr. Reddy received his J.D. from The University of Michigan in 1985.  His provocative thriller, By Force Of Patriots, brings to life the social, political, and legal issues at the heart of America's current angst.  It is available at