We all knew it would be close, but we never saw this coming: The Affordable Care Act survives, but only because Justice Roberts chose to characterise the individual mandate as a tax. The 5-4 outcome isn’t a surprise, but the particular reason is a big big surprise – one that virtually no one predicted (law professors included). How could we be so right, yet so wrong?First, the unsurprising part: The Court’s five conservative justices agreed that mandating insurance exceeds Congress’ power to regulate commerce, because uninsured people are not engaged in commerce. The four liberal justices squarely disagreed. Furthermore, based on this flaw, four of the five conservatives (all but Roberts) would have declared the entire Act unconstitutional, with no apparent qualms.
Now, the unexpected. Even though Congress invoked only its commerce power in writing the law, and President Obama went out of his way to avoid calling the individual mandate a tax, Justice Roberts, along with the Court’s four liberals, gave Congress the benefit of the doubt, ruling that the mandate can be viewed as a tax. Like a generous maths teacher who gives full credit to a student who stumbles on the right answer by accident even though she completely botched the formula, the Court upheld the mandate on grounds entirely different from what Congress thought it was relying.
How surprising is that? Enough that, out of the dozen or more lower court judges to consider this argument, only one (Judge Wynn on the Fourth Circuit, in the Virginia cases) previously agreed. But now we have five Supreme Court Justices rallying around the government’s last ditch legal defence – one that it almost didn’t argue because of the potential political flak of changing positions on whether something is a tax. Thank goodness the government’s lawyers overruled its P.R. folks.
But the issue was closer than even this. If the mandate is a tax, then the government also has to deal with its own jurisdictional statute, on the books for well over a century, declaring that no one can challenge taxes until they’re assessed. If this procedural bar applied, then the entire case would be premature, leaving us all hanging in suspense for another three years. To avoid this, Justice Roberts and colleagues had to conclude that the mandate is a tax for constitutional purposes, but not for jurisdictional purposes. THAT took some fancy footwork, but these are SMART guys and gals, and so if anyone can pull off that tightrope act, they can.
Legal scholars will continue to parse the decision for weeks, months, and perhaps years, to discern all the implications for future enactments and constitutional challenges to come. For now, based on first inspection, it strikes this reader that the Affordable Care Act survived only because Justice Roberts worked hard to find the one thin line of common ground on which both he and those on the other side of the Court’s ideological divide could stand.
[Mark Hall is one of the nation’s leading legal and health care policy experts, and a law professor at Wake Forest University in North Carolina.]
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