#RobertsCare: Proponents of statism score a victory, but the fight is by no means over

Posted by: ST on June 29, 2012 at 9:39 am

George Mason University law professor Ilya Somin writes today at the SCOTUSblog about yesterday’s stunning decision by the SCOTUS to uphold the ACA, the good, the bad, the ugly – and what it means for the future:

Overall, the Chief Justice endorsed the central arguments of the plaintiffs, as has a majority of the Court. The four dissenting justices – Alito, Kennedy, Scalia, and Thomas — also concluded that the mandate exceeds Congress’ Commerce and Necessary and Proper powers. This has potentially significant implications for future legislation imposing mandates under the Commerce Clause.

The Tax Clause

After agreeing with the plaintiffs on so much, Roberts still voted to uphold the mandate because it is a “tax” authorized by Congress’ power under the Tax Clause. He endorsed an argument that had been rejected by every lower court ruling that addressed it. Even the lawyers for the federal government seemed to have little confidence in it, as indicated by the fact that they relegated it to a brief section near the very end of their brief.

The ruling also runs counter to repeated statements by President Obama and numerous congressional Democrats, who assured us that the mandate was not a tax. As the president put it in 2009, “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” It is perhaps not surprising that Roberts voted to uphold the mandate. But it is a huge shock that he did so on the basis of the government’s weakest argument, one that even most liberal lower court judges had rejected.

Roberts argues that the mandate is a tax because it imposes only a monetary penalty on those who fail to comply, the mandate does not apply to people too poor to pay income taxes, and the fine is collected by the IRS. He admits that this not the “most natural interpretation” of the law.

The text of the statute refers to the fine as a “penalty,” not a tax. And the Supreme Court has repeatedly distinguished between taxes and penalties, defining the latter as “an exaction imposed by statute as punishment for an unlawful act” or omission. The health insurance mandate fits the definition of penalty almost perfectly: it imposes a fine as punishment for the unlawful refusal to purchase government-mandated health insurance.

Chief Justice Roberts claims that this is not a real penalty because “the mandate is not a legal command to buy insurance,” but merely a requirement that violators pay a fine to the IRS. Failure to purchase health insurance, is therefore, not really “unlawful. ” The logic here is underwhelming. Is speeding or jaywalking not really unlawful if the penalty for it is a fine payable to the treasury, and the very poor are exempt from it?

Moreover, pretty much any other mandate can be magically converted into a tax so long as it is structured in the same way as this mandate is. Congress can therefore use similar fines to force people to purchase broccoli, cars, or just about anything else. The danger here is not just theoretical. Numerous interest groups could potentially lobby Congress to enact a law requiring people to buy their products, just as the health insurance industry did in this case.

In his discussion of the Commerce Clause, Roberts ruled that the Constitution denies Congress the power to “bring countless decisions an individual could potentially make within the scope of federal regulation and … empower Congress to make those decisions for him.” Yet, having closed the front door of the Commerce Clause, the Chief Justice has now “empowered” Congress to make those same decisions for us through the tax power.

Prospects for the Future

Today’s decision is unlikely to be the last word on the constitutional limits of federal power. As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues. Both Chief Justice Roberts’ opinion and the powerful four-justice dissent reaffirm the need to enforce limits on congressional authority. And both accept all or most of the main constitutional arguments against the mandate. The latter will constrain future mandates imposed under the Commerce and Necessary and Proper Clause. No one can any longer say that the case against the mandate was a sure loser that could only be endorsed by fringe extremists or people ignorant of constitutional law.

Defenders of extremely broad federal power won an important battle today. But the war will continue.


I was at work yesterday when CNN made the blown early call that the individual mandate had been overturned – which I had read on my Twitter feed on the cell phone. Fortunately, no one was in the front office with me. I literally got up, jumped around, screamed “YES!” in delight multiple times, ran down the hall and jumped in excitement some more. (Sorry for the disturbing visual!)

Came back to my seat, continued to read what was coming over Twitter, and then realized CNN had gotten it horribly wrong. Horribly. My heart sank, my stomach dropped. What was worse about the blown call, I was – like many others – stunned to find out that the “swing vote” came from Chief Justice Roberts himself, who can usually be counted on to side with Alito and Scalia on cases with a broad national impact. I tried to make sense of it all, and I simply could not. Red State’s Erick Erickson wrote a positive piece about what Roberts’ had done, explaining the good parts of the ruling, but even that only gave me a moment’s relief. I came home from work not long after and had a chance to read the ruling, and reading Roberts’ opinion simply floored me, especially page 39. My first thought after reading it was “Who the hell IS this guy??”

Fortunately for me – and you, as you probably noticed yesterday at the blog – my co-blogger is an optimist in the truest sense of the word and encouraged me and others who were being Debbie Downers yesterday to remember we still had options: A GOP Congress and President could repeal ObamaCare. Romney himself stated yesterday he would do his first day in office what SCOTUS did not, and that was to repeal ObamaCare. I appreciated the upbeat attitude, and promised that after I got everything out of my system yesterday that my fighting spirit would be renewed today.  (Note: Romney raised $4.3 million yesterday after the ruling was announced. Wow.)

And it is. But that being said, I don’t believe Romney can by himself repeal ObamaCare – it is not that simple. Nor is it realistic, in my view, to think we’ll get a Republican Senate majority big enough to withstand nay votes by “moderates” in the Senate on the issue of repeal. If by some miracle we do, I’ll jump and skip around just like I did yesterday when I initially believed the individual mandate had been struck down. But I won’t hold my breath on that, and nor should you.

The House yesterday immediately scheduled a vote on repeal of ObamaCare that will take place after the Independence Day holiday. Senator McConnell, Minority Leader in the Senate, called for repeal yesterday in a statement. These are symbolic moves but important nonetheless in demonstrating their commitment to doing whatever they can to get rid of this monstrosity of a law, a law that is already having devastating impacts not only on the healthcare decisions of thousands of Americans, but also on small business and, as a result, job creation. I stated for the record yesterday in my disgust with what happened that if the GOP did not do everything in their power in the forseeable future to repeal ObamaCare, even if they had to do it piecemeal, that I would leave the the party. There are a few core issues I have that are deal-breakers with this party – abortion is one and full repeal of ObamaCare is another. I would still vote with and for them, but I simply would not want to attach my name to a party that would let ObamaCare stand out of giving up in frustration over failed attempts at repeal or replace.

Fortunately, I don’t think I’ll have to do that. But I will if necessary.

One final (heartbreaking) note: The Volokh Conspiracy and other blogs have speculated that Roberts initially was siding against the ACA, and have written intriguing posts to back up their opinions. If that is indeed the case, one wonders what it was that got Roberts to change his tune. Byron York tries to tackle that here.

In spite of the shock and utter disappointment over yesterday’s SCOTUS ruling, today and onward we continue to fight. It’s gotten that much harder in light of Thursday’s news, but giving up in the latter stages of the game we’re in is never an option, right?

Right. Let’s do this. I’m ready for battle (as my new header, put up Wednesday, indicates ;) ). Are you?

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5 Responses to “#RobertsCare: Proponents of statism score a victory, but the fight is by no means over”


  1. Carlos says:

    Of all the convoluted, nonsensical arguments I’ve ever heard from statists/socialists/liberals/moonbats/bleeding hearts, Roberts’ takes the cake.

    I have to wonder: Is English a non-native second language to him? Did aliens steal the real Roberts and replace him with a carbon copy made up mostly of b.s.? Is this a late April fool’s joke or an early halloween prank?

    The list could be nearly endless, but the bottom line is that, contrary to the line in Yahoo! news asking if Roberts saved the court, did he just sign the death certificate for an America that has any resemblance to a country that has any personal freedom or responsibility (not mandated by Congress or the President by executive order)? Did he just kill America?

  2. Xrlq says:

    I was as surprised by Chief Justice Roberts’s tax ruling as anybody, but am not particularly bothered by it. Yes, it sucks that government can use tax law to coerce you into buying broccoli or whatever, but that’s not new. The only thing new is that courts may find something to be a tax even though the legislation doesn’t describe it in those terms. Form vs. substance. Had the individual mandate been struck down, Congress could have enacted a new “health tax” in exactly the same amount as the “penalty,” offered a tax credit in the same amount to anyone who purchases a qualified health plan, and voila, there’s a substantially identical individual mandate the same court will easily uphold 9-0.

    Nor is coercion by taxation a particularly new development. Depending on your tax bracket and your husband’s, government either rewards marriage or penalizes it. It rewards you for having kids, but could be revised tomorrow to punish that. For a few years it rewarded you for buying a hybrid, or for turning in your old car and getting a new one. And it bribed all 50 states to lower their speed limits to 55, raise the drinking age to 21, and so on ad nauseam. So rather than saying Roberts closed one door on unlimited government while opening another, I think it’s more accurate to say he closed one door while leaving another wide open that has been wide open all along.

    Lastly, it’s worth recalling that a earlier version of the individual mandate would have provided jail time for noncompliance. In retrospect, it’s probably a bad thing it was taken out. With it, there’s no way this could have been recast as a tax.

  3. 80grrrip says:

    I think the one mitigating circumstance here when approaching the election is that Obamacare has been defined formally as a huge tax increase and therefore it might be easier to get moderate senators (and perhaps even some more liberal senators) to back repeal because they don’t want to be associated with the biggest middle class tax increase in world history. That point needs to stay at the forefront of the discussions about this law because it’s now less about health care and more about what it really is. All those Americans who want something for free are going to recoil at the idea that they might actually have to fork over some dough to get what they were sold on as free stuff (a government program). It will be interesting to follow. For sure, I just went from being a tepid Romney supporter to a very strong anti Obamanist. And I know I’m average enough that there are an awful lot of others feeling the same way.

  4. Drew the Infidel says:

    How on God’s green earth did Obhammud or anyone else connected with this travesty expect it would be paid for other than by taxes? When he starts addressing finance or foreign policy it is pitiful to watch knowing full well he is out of his depth on either topic. I doubt seriously he has the ability even to balance a checkbook. Circle November 6th on your calendar; your right to vote may be on the endangered list if this is a glimpse of this country’s future.

  5. Splendiferous says:

    I have been left with the opinion that this is all a put on. Decided up front that it will be found constitutional no matter what. I feel that the TPTB wanted it found constitutional. They had to find a way to call it constitutional no matter how crazy the explanation. I am waiting for the day that they pass a law that mandates that you spend 10% of your savings every year or they impose a 10% tax on it and the IRS just takes it away for someone else who knows how to spend your money better than you to help stimulate the economy. I thought that Kelo was the worst ruling in my lifetime but this ruling wins by miles.

    The 20 and early 30 year old voters better start getting political because they are the ones that will be left paying for this mess. They don’t need the insurance that the government will force them to buy. Way over priced for their needs. They’re the ones that voted for Obama.

    Just wait for the day when their employee refuses to buy insurance and pay the “penalty”, I mean tax because it is less expensive and they are thrown to the wolves to buy it on their own and find out how expensive it is. The whining will start.

    Sad day. :(