Submitted For Your Approval…

Mark Thompson in reply to Will Truman says:

@zic A “tax penalty” would be an unconstitutional use of the taxing power – both Roberts’ opinion and longstanding precedent (cited in my post linked by Chris above) held that the taxing power does not authorize penalties that take the form of a tax. The mandate fee was held to be a tax (again for the reasons I had predicted) precisely because it was far from punitive, with the key factor being that it was less than the cost of buying health insurance itself. Had it been found to have been an actual “penalty” it would have been an unconstitutional use of the taxing power.
@michael-drew I know we’ve had this discussion before, so I won’t belabor the point, but I think it’s a real stretch to say that the intent was either irrelevant or of minimal import just because the mandate was ultimately upheld. By a number of accounts I recall, Roberts was initially of the view that the intent (particularly as expressed in the language of the ACA) was dispositive. It surely would not have taken much for him to have stuck with that view.

Indeed, had he done so and thus voted to overturn the mandate, the portion of the resulting decision rejecting the tax argument would have widely been deemed an afterthought, and almost certainly the least controversial aspect of the decision – it would hardly have been radical to find that calling and structuring something as a penalty makes it a penalty. Roberts even at one point goes so far as to acknowledge that the natural reading of the statute required it to be viewed “as a command rather than a tax.” He explicitly skirted this “natural reading,” though, saying that 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.”

But more importantly, it’s worth mentioning that the only reason the issue of the mandate got anywhere with the court is because the court first – unanimously – found that it was not a tax for purposes of the Anti-Injunction Act (which, I must emphasize, contains no definition of what constitutes a tax, just like the Constitution).

So while the mandate was ultimately found to be a tax for Constitutional purposes by 5 of the 9 justices (Roberts and the four members of the liberal wing), it was first found unanimously that the clear intent of the mandate was that it not be a tax for other purposes and that this intent controlled.

This is incredibly important for a number of reasons, and not just because it meant that the mandate was saved only because five justices, including the conservative CJ, were willing to adopt a very questionable view that the word “tax” has a different meaning in the Anti-Injunction Act than it has in the Constitution despite an identical lack of definition of the word in either authority.

But maybe the assumption is that Roberts was being purely a political actor in salvaging the mandate and that, despite the language he used, the intent exhibited by the mandate had no impact on his decision as to the mandate’s viability whatsoever.

Even if that’s true – and I don’t think it is – the fact that all five justices who voted to uphold the mandate on tax grounds first concluded that it was not a tax for purposes of the Anti-Injunction Act had huge effects. Specifically, if those same five judges who considered it a tax for purposes of the Constitution had also been able to find it to be a tax for purposes of the Anti-Injunction Act, the question of the mandate’s Constitutionality would have warranted no further discussion – the Anti-Injunction Act’s applicability would have been an absolute bar to any challenges as to the mandate’s Constitutionality.

That in turn would have meant that the Court never could have or would have reached the question of whether the commerce clause authorized the mandate at all. And the Court’s discussion of the Commerce Clause (and for that matter the necessary and proper clause) was a gamechanger – the most significant limitation of Congress’ power in a very long time.

This is a huge effect stemming directly from the fact that Congress and Obama (with little evidence, IMHO) viewed it as politically expedient to avoid calling it a “tax” and bent over backwards to insist that it was not a “tax.” And it’s not an effect that can be explained away as having been inevitable – again, it wasn’t just Roberts and the conservative wing of the court that found it a “penalty” rather than a tax for purposes of the Anti-Injunction Act, but also all four members of the liberal wing.Report

Mark Thompson in reply to Will Truman says:

@michael-drew While he certainly came to the eventual conclusion that the intent could be overcome for purposes of the Constitutionality, the point here is that this was by no means inevitable. In fact, while he’s saying that he’s willing to rule it a tax in spite of the intent, he’s also saying that this is only because there is juuuust enough ambiguity in the expression of that intent to warrant applying a tortured interpretation. I strongly suspect that if the mandate had at all approached the actual cost of health insurance, he’d have found the expressed intent dispositive.

Basically, it looks like he wound up doing a balancing test in which intent was a significant factor, but one just barely outweighed by the combination of the rule of construction that statutes should be interpreted to survive Constitutional muster if at all possible, the fact that the fee was comparatively low, and the fact that it was to be collected by the IRS.*

*Speaking of which, I’d love to know why the word “tax” was considered more important to avoid than the phrase “collected by the IRS.”Report