National Federation of Independent Business v. Sebelius: The Median Justice and His Discontents

On Thursday, June 28–more than a week ago–the United States Supreme Court ruled 5-4 to uphold most of President Obama’s signature legislative achievement, the Patient Protection and Affordable Care Act.  So far the Liberal Ironist hasn’t written about that decision, other than to express his respect for the distinct role of the Court in our political system.  I wanted to see Liberal and Conservative reaction to the decision, and to see how it played-out with the public.  I wanted to hear more prognostications for the law’s prospects for survival and full implementation.  Then the 4th of July came upon us quite-suddenly…

As I poured through opinions on the opinions in National Federation of Independent Business v. Sebelius, I found myself increasingly interested in Conservative appraisals of the decision.  The Liberal Ironist–a supporter of the President’s Affordable Care Act who nonetheless had doubts that the law’s individual mandate to purchase health insurance would be found constitutional as such–was pleased by the majority decision and surprised by how underwhelmed he was by many (though not all) Conservative reactions to it, both where they showed deference to Chief Justice Roberts’s decision and where they did not.

For any who may not be familiar with exactly what I’m talking about: Chief Justice John Roberts, a 2nd term appointee of President George W. Bush, is usually a reliable Conservative voice and vote on the Court.  He rules in the majority nearly as often as “swing vote” Justice Anthony Kennedy, but he has never ruled with the 4 Liberal Justices on the Court in a narrow 5-4 decision before.  He is a seeker of consensus, but a Conservative one.  With John Roberts’ essential 5th vote, the Affordable Care Act’s penalty for not buying health insurance was upheld as a tax even though Congress was found not to have the power to compel economic activity in order to fund a private good under the Constitution’s Commerce Clause; the minority opinion ruled that the entire law was unconstitutional on that basis–an atypically extreme position for it to take.  On the Act’s massive expansion of Medicaid, the Federal health care plan for the poor, the Court’s Conservatives joined the Chief Justice and Justices Stephen Breyer and Elena Kagan to rule that the Federal Government couldn’t force the States to accept Federal funds to ultimately cover 90% of the cost of the expansion, under penalty of losing all existing Medicaid funds for non-compliance.  (So, call that a bait-and-switch in the eyes of the Court, if you will.)  The expansion of Medicaid has thus been made optional, throwing the ball into the court of the various States that would receive Federal funds.

Take a now-famous editorial defense of the decision by a Conservative: George Will’s post-decision column.  “The health-care legislation’s expansion of the federal government’s purview has improved our civic health,” Will begins, “by rekindling interest in what this expansion threatens — the Framers’ design for limited government.”  Oh boy.  I’m not gloating when I say this–and I respect George Will–but that is some pretty powerful rationalization there.  It’s uncharacteristic of Will as well; he’s usually more of a curmudgeon who might be ascerbic, but who nonetheless gives opinions that are clear, interesting, and consistent in representing the Libertarian wing of Conservatism.  Here, he seems to be skirting the obvious issue: A Supreme Court with a Conservative majority that isn’t afraid of radical rulings nonetheless deferred to a Liberal President’s creation of a new entitlement.  I agree with some of Roberts’ Conservative defenders to the effect that they obtained some real consolation prizes from the perspective of Federalism; but Will presumes much when he suggests a stronger sense of grievance among Republican voters is worthy compensation for Conservatives.  If they both opposed the President’s Affordable Care Act and believed it was unconstitutional, how can its survival and implementation–which they probably can’t prevent now–be worth it just as a “reminder” of the importance of the Constitution?  It’s not like the Court ever forgot about the importance of the Constitution.

With the sentence following the one I quoted above, Will shifts focus to a point other Conservatives have contemptuously shrugged-off–but which I think is a big story in itself: “Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.”

The 4 Liberal Justices on the Supreme Court ruled to uphold the individual mandate in the Affordable Care Act on the basis of the Commerce Clause, which permits the Federal Government to regulate interstate economic activity.  Justice Ginsburg went so far in her dissent on this point to call the majority view–sustained by Chief Justice Roberts, without whose support otherwise the Affordable Care Act would not have survived–“stunningly retrogressive.”  In fact health insurance markets are already essentially regulated at the State level; the ACA’s direction of each State to create its own health insurance exchange and the expansion of the Medicaid program for the poor both reinforce the functioning of separate statewide health insurance markets.

Will rightly notes that the upholding of the individual mandate on the grounds of the Commerce Clause would have in principle implied that Congress had the right to regulate an individual’s inactivity in a particular market, as long as that inactivity impacted interstate commerce.  In theory this could allow Congress to enforce compulsory consumerism if it should find a practical reason to do so.  (I’ll say nothing about the tired Conservative “slippery-slope” case of the Federal Government forcing people to eat broccoli.)

But while the Chief Justice found that the individual mandate to buy health insurance itself could not be justified on the grounds of the Commerce Clause, the “penalty” one pays as a consequence for failing to follow it is actually a tax.

I don’t really blame those who are confused on this point; the Obama Administration has muddied the waters somewhat, often refusing to call it a tax because in our current political environment that tends to patronize the affluent, paying for the government services we use has somehow become a touchy subject.  In any event the penalty for not buying health insurance really is a tax. It’s in the IRS Code and it’s collected on April 15th–the Queen’s tax day we inherited from Britain.  This was the argument I wanted the Solicitor General to stick to back in March, and the one I thought he was more-or-less fed from the Court at the time; apparently he had to fight with some people in the Administration to make this case as much as he did.

Will argues that denial of a Commerce Clause justification for the individual mandate represents ” a huge victory for the long haul.”  It’s true that this qualification will make it harder to pass Federal legislation with this level of regulatory scope.  It’s also true that every part of President Obama’s health care reform has been upheld by the Supreme Court, aside from the Federal Government’s authority to coerce the States into its programmed Medicaid expansion.  The law will now go into effect unless Republicans can muster the legislative and executive heft coming out of the November elections to repeal it.  Thing is, they can’t.

Will’s glass-is-totally-full perspective on the majority opinion points out real benefits for Conservatives in Roberts’ rejection of the Commerce Clause justification, but it exaggerates  the successful application of the Commerce Clause to defend Federal powers in similar cases, and it likely exaggerates the net electoral benefits of Conservative grievance following this decision.  But at least Will’s opinion is based in a good understanding of the decision itself, and takes the Chief Justice seriously.  National Review editor Rich Lowry’s take on the Chief Justice’s decision–that he balked at his role as an umpire because he was intimidated by the crowds in the stands–is patently ridiculous, even resentful.

If you trust Lowry’s view, the Chief Justice wanted to duck popular criticism for being “an activist, a partisan, and an altogether rotten human being” that would surely follow if he’d voted with the Court’s other Conservatives to strike down the Affordable Care Act.  This is a strange view that implies that Liberal mistrust of the Chief Justice for ruling in a characteristic and much-anticipated way would eclipse a Conservative sense of betrayal by the Chief Justice for ruling in a complicated and unprecedented way that upheld the Act.  Lowry objects that to call the monetary penalty for not buying insurance a “tax” is to re-write the bill; he offers the same even about Roberts’ median ruling, along with 2 of the Court’s Liberal Justices, to make the ACA’s expansion of Medicaid optional for the States without endangering all the Federal funding they receive through Medicaid now.

Both of Lowry’s objections to these decisions are misguided, even oblivious.  As I mentioned before, the penalty for not buying insurance is a tax; the law provided for it to be collected like any other Federal tax through the IRS.  Lowry objects that “the tax argument was an afterthought in the administration’s defense of the law” as if the version of a case that a disputant most-wants to make rather than what the judge discusses and actually believes about it should determine his or her decision!  His objection to the Chief Justice’s qualified support for the Medicaid expansion is even stranger, since the Federal Government’s prerogative to offer money to the States with conditions–which the States are free to reject at the cost of that funding–is long-since established in the courts.  In this case the Supreme Court effectively ruled 7-2 that the Federal Government cannot compel States into a massive expansion of Medicaid or face a loss of Federal funding for the program as it exists now.  This is the most-Conservative ruling on the Affordable Care Act, the only part of the decision that will affect the law’s implementation, and it was made on a somewhat-unprecedented question of federalism.

With that, I come to the view of the dissenting 4 Conservative Justices themselves.  I think it’s fair to say that a major theme of the dissent in this case is “We feel robbed because the law wasn’t upheld on the terms that we wanted to argue against.”  I am not saying this to suggest that I don’t respect the intellectual weight of the 4 Justices in the dissent, but because the scope of their objection to the majority position is less-profound than it appears to be.

“The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so. ”  Huh.  No, that’s wrong.  When Congress creates a tax, they aren’t obligated to refer to it as a tax.  Say what you will about it, but this isn’t even an unprecedented use of euphemism; the Liberal Ironist wishes the Obama Administration and Congressional Democrats hadn’t used it, but such was their disinclination to engage the obviously-popular anti-tax forces.  Their calculation was simple, and probably accurate: A mandate to purchase a good offends Conservatives, but while they may agree in principle it isn’t a passionate issue for independents.  (Independents have consistently volunteered that they don’t like the individual mandate concept in surveys, but there isn’t much evidence that their voting intentions for the 2012 Presidential Election have been determined by this.)  Taxes seem to trouble independents more, as the specter of “raising taxes during a recession” gives Republicans an argument they relish making to a broader audience.  But even this reaction of the public against taxation depends on who is getting taxed.  President Obama’s proposal to make George W. Bush’s tax cuts permanent for all but the highest income bracket is more-popular than the old Republican position of making all the Bush tax cuts permanent.

The individual mandate certainly imposes a burden on some people; if it didn’t require some people to buy health insurance or else pay a penalty fee there would be no point in legislating it.  But there is clearly an exaggerated sense of the burden it imposes.  Failure to buy insurance doesn’t make you a criminal, it just means you might incur extra expenses on April 15th.  The Affordable Care Act doesn’t “criminalize” the failure to purchase health insurance.  A tax and jail time are not interchangeable in either principle or in experience. This is not an issue of semantics; the meaning of “criminalize” in the law is exact. This is no obscure distinction, but it hasn’t registered with many of the Affordable Care Act’s detractors.

The Federal Government already subsidizes many forms of purchase for almost all citizens at some point in their lives. I think only Clarence Thomas on the entire Supreme Court has described his philosophy in Strict Constructionist terms that would try to limit the scope of Federal spending and regulatory power by whatever means are effective.  In the meantime the Court clearly finds the entitlements and mandatory social safety net spending constitutional, so whether or not a “mandate” to buy a product is constitutional, clearly a redistributive tax system to support purchasing of certain basic goods is constitutional. Again, the penalty might sting but it isn’t unprecedented, nor is it particularly onerous to those who will have to pay it. I think the dissent has gotten caught-up on the political controversy surrounding a law that, while inelegant, really doesn’t differ in kind from the simpler entitlements that date back as far as the Roosevelt Administration.

In their extreme decision, the 4 Justices of the dissent have smuggled-in the premise that they have a limiting principle in mind in what kind of entitlement constitutes an acceptable Federal Government social policy, and what does not; they do not.


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