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Thursday, June 28, 2012

Quick ACA Reactions

1.  I love that the mandate is not a tax for Anti-Injunction Act purposes but it is still a valid exercise of the Taxing Power.

2.  I am genuinely surprised that Kennedy voted as he did.  For all his talk of liberty and this mandate being unprecedented, he usually comes around.  

3.  I don't actually think this is a winner for the Rule of Law.  I tend to think Roberts did what he did for pragmatic reasons associated with the Court's legitimacy.  I'll take it.  But Akhil should still start therapy.

4.  I'm confused about whether the Commerce Clause's insufficiency is actually a binding holding.  Even if it has 5 votes, it isn't necessary to the result.

Posted by Ethan Leib on June 28, 2012 at 10:54 AM | Permalink


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I think that the ACA opinion advances federalism and states' rights. Roberts found the Act unconstitutional under the Commerce Clause, and he limited the federal government's ability to corece states into enacting regulatory schemes. For my full analysis, see The Legal Skills Prof Blog at http://lawprofessors.typepad.com/legal_skills/2012/06/obamacare-wins-but-so-does-federalism.html.

Posted by: Scott Fruehwald | Jun 28, 2012 1:24:43 PM

By the way, the best answer to this question (not the one the Court used) comes from Mike Dorf and Neil Siegel in Yale L.J. Online. They argued that the AIA did not apply because the lawsuit did not challenge an immediate tax assessment; it was challenging the underlying law that, in the distant future (2014), would permit that assessment.

Posted by: Howard Wasserman | Jun 28, 2012 12:35:12 PM

Seems pretty bizarre to me. Though it is interesting that he is basically saying there that it ISN'T a tax, actually (which solves the AIA issue, I suppse) -- that he is only construing it as such to save it. What a ringing endorsement of his own argument upholding it!

Posted by: Ethan Leib | Jun 28, 2012 12:12:20 PM

Roberts writes the following in response to the question about whether the Commerce Clause holding is dicta:

"JUSTICE GINSBURG questions the necessity of rejectingthe Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction."

I find that rather persuasive.

Posted by: Meir | Jun 28, 2012 11:12:19 AM

Re, point #1: This is the view that was posited by Judge Kavanaugh in the D.C. Circuit. Kavanaugh is a young Bush II appointee who would be (or might have been) on the short list in a Romney Administration.

Posted by: Howard Wasserman | Jun 28, 2012 11:02:02 AM

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