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Monday, December 19, 2011

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.

Posted by BDG on December 19, 2011 at 10:32 PM in Constitutional thoughts | Permalink


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Perhaps the answer is not that ACA is different but that the Taxing Power is different. The statute itself must define something as a tax in order for it to be a tax and something must be a tax in order for it to be an exercise of the Taxing Power. This contrasts with, for example, the Commerce Clause and § 5 powers, both of which could produce an identical piece of legislation.

More generally, perhaps there is a distinction between Congress controlling the arguments that the executive can make ("no arguments about the unitary executive") and Congress identifying what *it* was doing, including the specific powers it was exercising, in enacting some legislation. Perhaps the concept of enumerated powers does limit not only what the legislature can enact, but also how that legislation can be defended by the executive. Similarly, the courts' job is not to find anyway to uphold the legislation, but to figure out the validity of what Congress has done, including what power Congress has exercised.

Posted by: Howard Wasserman | Dec 20, 2011 7:56:54 AM

Orin Kerr's comment indicates that he is on the side of judicial supremacy over the executive and legislative branches when it comes to constitutional interpretation/construction despite lack of specificity in the Constitution's text and even with originalism of whatever version.

Posted by: Shag from Brookline | Dec 20, 2011 7:21:48 AM

Brian, I think -- though I am not an expert on this -- that you are misunderstanding the argument. Courts are not saying that the mandate is a tax but Congress chose not to invoke the taxing power. They are saying it is not a tax, in part because Congress did not use the magic word "tax." There is a distinction there.

In the abstract, nobody is too fond of a magic word test, but they in fact are everywhere. For example, the patents and copyrights clause allows Congress only to grant patents and copyrights to "authors" and "inventors." We grant copyrights all the time to corporations, even though I seriously doubt they can be considered "authors" of anything, through the loophole that Congress deems the corporate employer to be an "author" in the copyright statute.

Posted by: TJ | Dec 20, 2011 2:49:39 AM

Brian, how is this a "power to dictate what constitutional arguments are out-of-bounds for other branches"? The Executive Branch is perfectly free to make the taxing power argument, and the Judicial Branch is perfectly free to evaluate that argument and decide it on the merits.

Posted by: Orin Kerr | Dec 19, 2011 11:20:16 PM

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