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Tuesday, July 03, 2012

Chief Justice Roberts and the ACA cases

Now that I have the benefit of a long time's reflection about, and critical distance from, Thursday's decision (insert appropriate emoticon here, to signal that I'm aware of the funny-absurdity of four days being a "long time" in blog-world), a few thoughts about the ACA cases, and the Chief Justice's opinion in particular, are starting to come together.

First, I am surprised and (maybe naively) disappointed by the almost-Orwellian "two minute hate" (which, I suppose, could go on longer) that has erupted in the world of talk-radio and in sectors of the right-leaning blogosphere towards the Chief.  One would think he'd suddenly become an amalgam of Bill Douglas (or maybe David Souter) and Bill Ayers, this former law clerk to Justice Rehnquist and lawyer for Ronald Reagan.  (I heard a radio guy say, "I knew it all along, this guy is no conservative!"  But this, of course, is insane.)  All this because he didn't vote to strike down a law that (a) remains repealable, if it's so bad, and that (b) most people -- including some who are committed to judicial enforcement of the Constitution's structural features -- thought until recently was, even if seriously wrongheaded, probably constitutional under the relevant precedents?  And, apparently, the fact that he somehow got two "liberal" justices to sign on to what I think is the first decision since Dole to put any teeth in the "there are limits to the federal government's ability to regulate-by-spending" idea (an idea that is, as I've argued, essential to any meaningful "federalism revolution") seems, in these quarters, to count for nothing.

Second, it is pretty much universally believed (see, for example, Jessie's recent post), so far as I can tell, that the Chief Justice's argument that the mandate may be regarded, for constitutional purposes, as a "tax" -- not because it obviously is one but in order to save a major statute enacted by the Congress and signed by the President -- is glaringly unconvincing, and that the Chief embraced this argument for "political" reasons.  I'll go out on a limb, and say that, in my view, what the Chief actually says -- e.g., that it is possible to regard the mandate, given all the circumstances, as, functionally speaking, enough like a tax to justify taking the avoidance-canon route and upholding what would otherwise be an unconstitutional law -- doesn't strike me as notably less convincing than a lot of things that the Court has done and that many law professors have welcomed.  I have not thought enough about the question, I admit, but it does not seem like we're talking "Yoder was about hybrid rights"-unconvincing here.  And, the very existence of this route -- the idea that unelected federal judges should try, if it's possible, within reason, to interpret federal statutes in ways that keep their existence and merits in the political arena -- is "political," isn't it?

Third, I certainly hope it is not true -- I am confident that it is not -- that the Chief changed his vote merely because some critics were (lamely, I think) anticipatorily complaining that it would be activist, illegitimate, etc., etc., for the Court to strike down the law.  (High dudgeon about how shocking it would be for the Court to strike down the ACA, coming from folks who, I suspect, think it was Wise and Good to invalidate, say, the death-penalty or abortion-related laws in dozens of states is a bit hard for me to take seriously, as is disingenuous praise from former-and-future critics of the Chief for his "statesmanship" here.)  But, here's another possibility.  I know, I know, it sounds naive, but:  Perhaps the Chief Justice really did come to believe, during the Spring, that -- especially in circumstances like the ones surrounding the ACA cases, which were decided months before a presidential election, and which involved the President's primary legislative accomplishment, and which were vigorously debate (even if unedifyingly enacted) -- it would be a bad thing -- not for him, or his "legacy", and not even just for the Court itself -- for the Court to strike down the mandate by a 5-4 vote, on a theory that is, even if sound, certainly debatable among reasonable and informed people.  And so, having come to believe this -- having changed his mind -- he took the "out" that the "it's permissible to regard this as a tax" argument offered.  It's not as if (contra, e.g., Roe) he put a bad policy beyond the reach of correction, or voted to remove a deeply contested and inescapably moral question from the political process and to constitutionally entrench what many regard as the wrong answer to that question; to the extent he constitutionalized anything, it would seem to be a pretty hard-core Madisonian approach to the Commerce Clause, the Necessary and Proper Clause, and the Spending Power.

And, of course, he wrote Hosanna-Tabor.  Yay, Chief!

Posted by Rick Garnett on July 3, 2012 at 11:09 AM in Constitutional thoughts, Rick Garnett | Permalink


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Yeah, I missed what was so unconvincing about what the Chief did. Not only is it not unconvincing, I think he's probably right on the statutory interpretation question, though I'm not so sure about whether Congress can tax people for not buying things. If Roberts had so thoroughly rewritten the statute, as the dissenters and much of the professoriate claim, you'd think that his doing so would have some kind of legal consequence, that before Thursday people were somehow legally required to buy insurance and today are just subject to a tax if they choose not to. But of course, absolutely nothing changed as a result of Roberts' construction of the statute. Before Thursday, not having insurance wasn't a crime, and the government couldn't sue people who refused to obtain insurance to make them comply. The only legal consequence of not having insurance was a payment, made on one's tax form, that's relatively small, revenue-raising, and graduated by income. After Roberts's decision, that's still the law. And even if you think the statute Roberts wrote is somehow different than the one Congress passed, think of it this way: Roberts effectively severed the (supposedly) unconstitutional provision of the statute, the mandate, from the penalty, turning the penalty into a constitutional tax - one which even the dissenters don't find fault with, aside from some lingering direct tax concerns. What's unconvincing about that?

Posted by: Asher Steinberg | Jul 3, 2012 3:59:54 PM

@MinneProf. I know that many respected minds are worried that the taxing power will go the way of the Commerce Clause, but I have my doubts for two reasons: 1) Now that we know such individual mandates are "taxes," it will me much more difficult (politically) for future mandates to garner sufficient support in Congress. Think of how many politicians run on "no new taxes" campaigns, and the public will likely hold them to it. 2) The Chief's opinion did indicate that at some point, a tax would cease to be a tax and instead be an unconstitutional penalty. While we don't have crystal clear guidance as to where that point is, any "taxes" which are so high as to effectively leave the consumer no real choice but to comply with the mandate would not be constitutional under the taxing power.

Posted by: FreshlyMinted | Jul 3, 2012 2:46:06 PM

I agree re: the non-reaction to the conditional federal grants holding. This is the first time in a very long while that such a grant was struck down. And I'm going to be a little coy here, but now that the court has agreed to ignore congressional labels and rule on the subsatance of legislation, perhaps it will start calling conditional federal grants what they really are--regulatory measures, not simply outlays of money.

This would open the door for disallowing conditions that amounted to direct regulation, at least in areas where Congress cannot directly regulate. Note that Medicaid is NOT one of those cases, since Congress could've enacted Medicaid as a purely federal program. But legislation like the National Minimum Drinking Age Act (at issue in Dole) would be unconstitutional, because of the 21st Amendment.

Posted by: Doug | Jul 3, 2012 2:38:36 PM

@MinneProf, I'll take a crack at (2a): It would be as unconstitutional as the individual mandate would be if there were a substantive constitutional right to be free of purchase mandates.

@Prof. Garnett, as a former-and-future-critic who has praised CJR for his statesmanship (though not, I hope, disingenuously), I thought yours was a great post.

Posted by: David Franklin | Jul 3, 2012 1:36:58 PM

(1) I have this feeling that when my grandchildren are in law school (many years from now), they'll be talking about the taxing power much like today's students talk about the commerce power.

(2) A student e-mailed a question (paraphrased): Suppose a federal law required weekly attendance at a Christian church. The statute provides that in cases of non-attendance, the non-attending citizen will be required to pay 0.5% of his weekly income to the U.S. Treasury.

(2a) How would you respond to the student?

Posted by: MinneProf | Jul 3, 2012 12:54:54 PM

Thanks for this (as usual) well-reasoned and thoughtful post, Rick.

I thought going in that the Chief might be the swing vote to uphold--but that was based on my pegging him as generally devoted to the doctrinal modality, and the thought that he would find himself unable to avoid the commerce clause precedent. On that score I think, as you and others have pointed out, "conservative" federalists should be quite happy--though I do think that the commerce holding (assuming it is a holding) is probably a one-trick pony.

And, like you, I think the tax conclusion was a very reasonable way to show deference to the political process...

Nice post...

Posted by: Ian Bartrum | Jul 3, 2012 12:40:59 PM

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