The ACA and Congress' Power (?) to Say What the Law Isn't

As regular Prawfs readers know, I’m, eh, fairly interested in a taxing-power analysis of the Affordable Care Act.  You might think at this point, after numerous circuit court opinions, a goodly number of law review essays, and something like a kajillion amicus briefs, that there’s not much more interesting to be said.  And you might be right about “interesting.”  But I have what I think is a novel set of arguments I’d like to air here for your collective consideration.

            So far, there’s no court that has said that enacting the “minimum coverage provision” of the ACA would be beyond Congress’ power to tax.  What courts have mostly said instead is that Congress chose not to use its taxing power, and so they refuse to consider the question.  Some have gone so far as to say that if Congress had explicitly called the “mcp” a tax or rearranged its structure a shade, it would obviously be constitutional. 

            My claim is that these decisions rest on an extraordinary, novel, and potentially important principle no one has considered in any meaningful way.  The ACA says nothing directly about the Taxing Power; it simply uses the word "tax" in some places and "penalty" in others.  This, it is said, means that Congress has chosen not to rely on the Taxing Power.  I suppose the assumption is that it necessarily follows that a court cannot uphold the statute on that basis.  But that assumption is a doozy.  In effect the courts hold--implicitly, no less---that Congress has the power to tell the Executive it cannot argue, and the Court that it cannot decide, that a statute Congress enacted is valid under a particular clause of the Constitution.  (*:credit where it’s due: Dorf’s been on this issue, too.)

            After the jump, some fun with hypotheticals. 

First, think about the Civil Rights Act of 1964.  Of course, the Court upheld the CRA64 by pointing to Congress’ power to regulate commerce.  That path allowed the Court to duck a head-on confrontation with the Civil Rights Cases, which (if I remember my con law I) might have prohibited Congress from relying on its powers under the 14th Amendment to justify the Act.  But what if Congress, confident that the Court wouldn’t dare strike down the Act, had instructed that the law would have to stand or fall on the 14th Amendment alone?

            Here’s another one.  What if Congress suddenly gets really excited about decentralization, and (overriding the President’s veto) enacts a statute declaring: “In litigation in the courts of the United States, or of any state or territory thereof, the Attorney General of the U.S. shall not assert that, by reason of the Supremacy Clause of the U.S. Constitution, the laws of the United States take precedence over the laws of the States”?  Or, more simply, what if Congress prohibits the AG from asserting the principle of the “unitary executive” in any court?         

            I don’t want to suggest from these admittedly over-dramatic hypos that I think the answers are easy or obvious.  Quite the opposite.  Which is why I think it’s extraordinary that courts so far have assumed the existence of this power -- the power to dictate what constitutional arguments are out-of-bounds for other branches -- without even pausing to consider whether it exists, or if so, when.  Is the ACA distinguishable from the hypos I posed?  To give an answer to that question, I think we’d need a fairly thick theory of what might be troubling about the hypos, and explain why that isn’t happening here. 

            Next time: nope, I’m not going to answer these questions.