June 25, 2018
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Roberts writes his own law in health care ruling

By Ramesh Ponnuru, Bloomberg

In the end, most of the arguments about President Barack Obama’s health care overhaul turned out to be beside the point.

The law’s defenders for the most part argued that Congress can require people to buy health insurance because the Constitution lets it regulate commerce “among the several states.” Their fallback argument was that Congress can impose the requirement because the Constitution gives it the power to make “all laws which shall be necessary and proper for carrying into execution” its regulations.

Opponents of the law concentrated on knocking those arguments down. Most people on both sides assumed that the individual mandate would stand or fall on those grounds. So the conventional wisdom wasn’t just wrong about the outcome of the case — a much more severe blow to the law was expected — it was wrong about what the case would, in the minds of the justices, be about.

A majority of the justices concluded that the mandate couldn’t be justified under the Commerce Clause, even with the necessary-and-proper backing. A different majority of the justices also declined to get rid of the mandate. Chief Justice John Roberts, the only one in both majorities, bought the administration’s second fallback argument: The mandate is an exercise of the government’s power to tax.

The mandate, in this argument, is like the tax deduction for charitable giving. If you don’t give to charity, you pay more to the federal government. The same goes for not buying insurance under Obama’s health care law. In this view, the difference is merely that the health care statute calls the extra money you pay the government a “penalty” for breaking the law rather than a “tax.”

Not many people doubt that the government can make different groups of people pay different amounts of money based on economic decisions. Nobody thinks the charitable deduction is unconstitutional. So, Roberts and four colleagues conclude, it can also tax people differently based on whether they purchase health insurance.

In defense of those of us who didn’t expect this argument to be decisive, no lower court had considered it compelling. In our further defense, it isn’t compelling. Many critics of Roberts’ decision have noted that Obama denied on national television that the mandate is a tax. Let’s leave that fact aside, on Justice Antonin Scalia’s theory that the history of the debate over a piece of legislation should be ignored in favor of looking at the text.

The text of the bill doesn’t help Roberts’ case. The problem isn’t just that the bill repeatedly uses the word “penalty.” It also refers to the mandate as a “requirement” and says that people “shall” buy insurance. That’s where the analogy to taxes breaks down. People aren’t required to donate to charity. The law doesn’t say that they “shall” be philanthropic.

Congress could have written a law that merely imposed an extra tax on nonpurchasers of insurance, or that gave a tax break to purchasers. Maybe Congress would have done exactly that if it had known a majority of the court doesn’t believe it has the power to impose a mandate under the Commerce Clause. What Congress actually did was something different.

Roberts appeals to the idea that a court should read an ambiguous law in a way that renders it compatible with the Constitution.

Roberts performs the same maneuver elsewhere in the opinion. Like the four justices who think the law should be struck down (and like two liberal justices), Roberts believes that the law unconstitutionally coerces the states by threatening to cut off all federal Medicaid funding if they don’t expand the program. Instead of striking down the law, however, he again rewrites it, so that only a portion of federal Medicaid funding is withheld from balky states.

The resulting law may be a better one than Congress wrote. It is not, however, the law that Congress wrote. Roberts may think he has threaded a needle. He has avoided affirming an expansive reading of the Commerce Clause, which conservatives loathe, while refusing to give liberals the ammunition to call him a partisan for dismantling their cherished law. He acted cleverly. He also acted less like a judge than like a politician, and a slippery one.

Ramesh Ponnuru is a Bloomberg View columnist and a senior editor at National Review.

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