In the moments leading up to the Supreme Court’s healthcare
announcement, the internet did its duty in posting hilariously prescient
pictures of a sword-wielding character from Game of Thrones captioned: Brace
Yourselves, Everyone On Facebook is About to Become a Constitutional Scholar.
To prepare for the ruling I made a bet with Tyler Brown
several months ago. If you aren’t familiar with my bets with Tyler Brown,
here’s how they work: whenever a major event is about to happen and it could
conceivably go either way, I allow Tyler to decide which side he would like to
take and then bet him a six-pack of craft beer that the opposite is going to
happen. He typically selects the side that is deemed by most observers to be
the most likely to occur (the government is going to temporarily shut down, a
country will leave the EU by February, the ACA mandate will be declared
unconstitutional, etc…), and he has somehow managed to lose every time.
Regardless of what it means for the country, the ruling today means at the very
least that I just won another six-pack of beer and my streak of
winning-by-being-contrary continues.
At the risk of being one of the many unnecessary constitutional scholars
of the day, let’s get into the actual issues (since I had to read all 190+
pages, I figure I may as well try to explain them). Since my job is to write
things so that a high schooler can understand them, that is how I will write
this post. I will try to pull out what I think are the most important passages
in the main opinion by asking and answering what I think are the most common
questions about what happened. I make no
promises as to the accuracy of my analysis.
But first:
Why does the Supreme
Court get to be the final arbiter of the Constitution?
Immediately after the ruling came down, Senator Rand Paul (who was then echoed by MANY commentators) said this:
“Just because a couple people on the Supreme Court declare
something to be ‘constitutional’ does not make it so. The whole thing remains
unconstitutional.”
It would be easy to answer this by just saying: "No."
The less easy answer to this is Marbury v. Madison, in which the Court inferred the power of
judicial review from the structure of the Constitution. The Constitution
doesn’t SAY who gets to be the final judge of what is constitutional, but
SOMEONE has to be (right?). Since the Constitution is “the supreme law of the land.”
(Supremacy Clause) and the Supreme Court gets to hear all cases “arising under
this Constitution” (Article III powers) it can be reasonably inferred that the
Supreme Court gets the final say relative to the Constitution. Now, there are
also people who say that the directive that all officers of the United States
take an oath to uphold the Constitution indicates that the power to interpret
the Constitution was left up to ALL the branches, but this would result in
quite a bit of confusion since, as we see, reasonable people can disagree as to
almost every word in the document.
For the past two-hundred years the idea that the Supreme
Court is the final word on the Constitution has been basically accepted by
everyone. It is true that they are just men and women and do not have some sort
of magical Constitution-analyzer that gives them the BEST answer for every
constitutional question, but the structure of our government depends on them
always having the LAST answer.
Alright, now that we’ve taken care of that, here we go (all
subsequent quotations in this post are from the Chief Justice’s opinion):
What does the ruling mean?
Every functional aspect of the health care bill survived.
They made it a LITTLE easier for individual states to say no to the Medicaid
expansion (which I might address in another post) but everything will basically
function as it would have had there not been a constitutional challenge.
So Chief Justice Roberts sided with the liberals?
No, not really. The four traditionally “liberal” justices
went along with his analysis because it ended with the preservation of the law,
but they completely and vehemently disagreed with almost everything he did to
get it there. It goes without saying the four “conservative” justices disagreed
as well. This was a 4-4-1 that turned into a grudging 5-4 majority.
So the Federal Government can force us to buy anything now?
No. Chief Justice Roberts wrote that the individual mandate
was in fact unconstitutional for Commerce Clause purposes. As the Chief Justice put it, “[c]onstruing the
Commerce Clause to permit Congress to regulate individuals precisely because
they are doing nothing would open a new and potentially vast domain to
congressional authority.” That is to say- you can’t force people who aren’t
doing anything to buy things. Now, there are legitimate constitutional
counter-arguments to this in Justice Ginsberg’s concurrence/dissent, but I’m
not going to get into any other opinions in this post because that would
complicate things further.
So why is the law constitutional?
The penalty that occurs due to noncompliance with the
mandate is a tax, and “[t]he Federal Government may enact a tax on an activity
that it cannot authorize, forbid, or otherwise control.” The federal taxing
powers are QUITE strong and they can do basically anything they want through
taxation. It has been like this for a LONG time so there is little reason to
fear some sort of slippery slope and say “oh the Supreme Court has taken away
all our liberties and now Congress is going to enact legislation that tells us
how many times we can take a breath in a day!” The people on the internet who
are saying that are wrong, unless my reading comprehension skills suffered some
massive setbacks in the past year.
But if it was a tax why didn’t the Anti-Injunction Act stop the Court
from hearing the case in the first place?
Because Congress said it wasn’t a tax.
Wait, so it is a tax AND not a tax at the same time? That sounds silly.
Yes. Okay. Congress went to great lengths to make sure that
everyone knew the individual mandate was NOT a tax and that its penalty was NOT
a tax. The Anti-Injunction Act (AIA) says that you can’t sue the government for
a tax that you haven’t had to pay yet. For the purposes of the AIA, the
government gets to decide what is and isn’t a tax because they’re the ones
getting sued. If they want to allow for lawsuits early by not calling it a tax,
fine. If they want to call it a tax and not be sued until after the first
collection, fine. The bottom line is that the Court really doesn’t care and
they’re just going to go by whatever label Congress affixes to something for
the purposes of when people can sue Congress. There is an inherent assumption,
I think, that this will not motivate Congress to call things that are not taxes
“taxes” in order to delay lawsuits. I think that makes sense.
For constitutional purposes, though, the mandate penalty
functions as a tax.
“It is up to Congress whether to apply the Anti-Injunction
Act to any particular statute, so it makes sense to be guided by Congress’s
choice of label on that question. That
choice does not, however, control whether an exaction is within Congress’s
constitutional power to tax.”
It is long established that the Court SHOULD do whatever they
can to construe an act of Congress as being Constitutional. “The question is
not whether that is the most natural interpretation of the mandate, but only
whether it is a ‘fairly possible’ one. … As we have explained, ‘every
reasonable construction must be resorted to, in order to save a statute from
unconstitutionality.’” Since the penalty does not directly force a noncompliant
person’s hand (as the penalty amount is significantly lower than the cost to
obtain insurance) and since it is collected by the IRS on tax forms, it can be
said to function as a tax more than as a penalty.
But Obamacare is obviously unconstitutional! It’s like, the worst idea
ever! How could the Chief Justice uphold it?!
Look, ultimately there are some pretty convincing arguments
in both directions. After reading each opinion you may have a preference as to
which one was the most convincing, but I don’t think many careful readers would say that
any one of the opinions was absolutely groundless. The Court is composed of
nine extraordinarily smart people who are making a tiny fraction of what they
could be earning in private practice. The most plausible explanation as to why they would do this (aside from ABSOLUTE POWER) is that
they love their country and are each doing their best to interpret the
Constitution as best they can. It is a complicated document and
parsing out the legal issues is not as simple as deciding what is a good idea
or not. In fact, it is pretty clear that Roberts disagrees entirely with the
health care law. However, “[i]t is not our job to protect the people from the consequences
of their political choices.”
There is a LOT to say about the Medicaid coercion provision and the other opinions within this decision (to say nothing of the extended discussion around what John Roberts is doing strategically with this decision), but for now I would like to think that I hit most of the things that I have heard being discussed about the mandate portion of the decision.
Finally, this is old but sometimes necessary:
