There
is a good reason why not even most liberal commentators are applauding the
actual legal reasoning Chief Justice John Roberts used to avoid striking down
the ObamaCare law: The "reasoning" is thinner than unleavened bread, and
crumbles to dust not just upon gentle handling, but merely under the weight of a
piercing gaze.
Let us count the inanities,
inconsistencies and constitutional/statutory infirmities of the key section of
Roberts' decision, which ruled that the ObamaCare mandate-and-penalty is a
"tax," and a constitutionally permissible tax at that.
First, much has been made of
Roberts' assertion that something that is not a tax for purposes of something
called the Anti-Injunction Act (AIA) actually is a tax for constitutional purposes. In
truth, this is the least indefensible of Roberts' intellectual apostasies. It
is possible, as he demonstrated
from precedent, to have two different standards for when something qualifies as
a "tax." The problem is not with the theoretical (if exceedingly rare) concept
of two different legal standards, but with Roberts' tendentious application of
it.
The very example he uses to
prove his point that two standards can apply actually argues against calling it a "tax" in this
particular case. Roberts cited the Drexel
Furniture case from 1922 – but, to quote from that case, "[T]here
comes a time in the extension of the penalizing features of the so-called tax
when it loses its character as such and becomes a mere penalty with the
characteristics of regulation and punishment. Such is the case in the law before
us…. Congress does achieve the [effect of a penalty rather than a tax] by
adopting the criteria of wrongdoing and imposing its principal consequence on
those who transgress its standard."
Obviously, that is exactly what happens in ObamaCare as
well.
Second, although Roberts went
on to discuss other aspects of the Drexel
Furniture case, one of which was something called a scienter requirement (meaning a conscious
or knowing violation), he then blithely distinguished ObamaCare from it by
saying the health-care law has no explicitly expressed scienter requirement. This is nonsense –
because in short order, he explained another reason the mandate does not carry a
"penalty" is specifically because
it allows citizens a conscious choice to ignore the mandate (and pay
the government fee instead). So which is it, a conscious violation or not? He
can't have it both ways. Scienter existing de facto is still scienter, whether or not it is explicitly
named.
Third, Roberts says the
penalty can be deemed a tax largely because the Internal Revenue Service – a
tax-collecting agency – collects it. In Drexel, he explained, the fact that part
of the enforcement came from the Department of Labor – a non-tax-collecting
agency – made it therefore not a tax. Oh, really? In that case, why isn't it
significant, as the four conservative dissenters note, that "the mandate and
penalty are located in Title I of the Act, its operative core, rather than where
a tax would be found—in Title IX, containing the Act's 'Revenue
Provisions.'?"
If Roberts cares so much about
where a function is located,
then why doesn't he care that the law itself locates the mandate in a Title not
dedicated to revenues? After all, in another section, Roberts himself says that
"the essential feature of any tax" is that it "produces at least some revenue
for the government." This mandate, however, is meant to discourage revenue, because it is
designed to impel everybody to buy health insurance and thus avoid paying any
penalty at all.
(For that matter, why isn't it
significant that ObamaCare's mandate, like the Drexel penalty, is partially enforced by
an agency other than the IRS? The Obama administration's own high court brief
notes that the IRS and the Department of Health and Human Services are "the
two agencies to which Congress
assigned authority to administer" the mandate.)
Fourth, Roberts makes the
extraordinary claim that "Neither the Act nor any other law attaches negative
legal consequences to not buying health insurance, beyond requiring a payment to
the IRS" – and that the IRS is forbidden from using criminal prosecution to
penalize those who refuse the mandate. The problem here is that the IRS
can withhold income tax refunds
from those who refuse to pay the penalty, and it can choose to apply ordinary
income taxes to the penalty first, before crediting the citizen with
having paid his due income taxes – and then the IRS can impose a penalty for
failing to pay those taxes, and
then prosecute or garnish wages for failing to pay that penalty.
In effect, just as funds are
"fungible," so too are the enforcement mechanisms of the IRS fungible so that,
in the long run, there are indeed some hugely "negative legal consequences to
not buying health insurance."
Fifth, Roberts posits a
hypothetical situation involving the government requiring "that every taxpayer
who owns a house without energy efficient windows must pay $50 to the IRS…. No
one would doubt that this law imposed a tax, and was within Congress's power to
tax." But that's not true at all. I know lots of people who would say this is a
penalty, not a tax, and that it was wholly outside of Congress' powers. (More on
Congress' powers in a moment.) Think about it: Have you, dear reader, ever in your life been assessed a tax
specifically because of something you did not do? Of course not.
Sixth, Roberts discusses the
constitutionality of such a "tax" by rejecting the plaintiffs' complaints that
the penalty would amount to an unconstitutional "direct tax" (if it were a tax
at all) – but Roberts himself never takes the next step of identifying which
sort of tax it actually is, if not a "direct" one. Nor does he bother explaining
how it can be constitutional if it is another form of taxation. This is all
rather abstruse, but the Wall Street
Journal absolutely blew away Roberts' failure to identify what sort
of tax it is, and his apparent belief that Congress' taxing power is infinitely
elastic.
Seventh – and this is a real
howler – Roberts makes this absurd assertion: "First, and most importantly, it
is abundantly clear the Constitution does not guarantee that individuals may
avoid taxation through inactivity. A capitation, after all, is a tax that
everyone must pay simply for existing, and capitations are expressly
contemplated by the Constitution." This misses the point entirely. A capitation
tax is one of the "direct taxes" discussed above, and is assessed equally per
person. It is the person, not the inactivity that is being
taxed.
What is at issue with
ObamaCare is not that
individuals are trying to avoid taxation via inactivity, but that the government
is "taxing" – actually, "penalizing" – only the inactivity. People avoiding the
mandate aren't avoiding a tax through inactivity, they are avoiding a purchase of a private service (insurance)
they do not desire to have. Government has never "taxed" the decision to remain inactive in any
sphere, at any time.
Eighth, as I have argued
elsewhere, Roberts makes the dreadful mistake of wildly conflating tax breaks or
incentives on ownership or activity with a new tax on inactivity (as if the two
– a tax on the one hand, and a tax exemption on the other – are among the same
species and breed of beast). He seems to think that just because Congress can
offer a tax "incentive," such as a new home-owner's exemption from property
taxes, this is in the same ballpark as taxing the refusal to buy a product.
That's crazy. The property tax is generally applicable, and already in existence
before the tax break. But there's no generally applicable "health insurance tax"
from which purchasers of insurance are exempt.
(In that light, let's go back
to energy-efficient windows. In congressional testimony in
March of this year, Carrie Severino, Chief Counsel and Policy Director of the
Judicial Crisis Network, said this: "Historically Congress has induced purchases
through tax incentives or by conditioning other government benefits on
purchases. If the government's position is correct in this case, these
workarounds were clumsy and inefficient solutions to a problem Congress could
have more easily solved by directly compelling purchases…. Instead of offering
incentives like Cash for Clunkers or tax credits for energy-efficient home
improvements, Congress could have required individuals owning
non-energy-efficient vehicles or homes to exchange or upgrade them. If the
government truly had this simple and direct way of achieving its goals, it would
have exercised it long ago, and for emergencies far more pressing than health
care reform.")
Ninth, Roberts skates over
what should be an absolute requirement to determine if the fee for non-purchase
is intended to penalize a
desired lack of behavior – which would make it invalid as a tax – by writing
that "More often and more recently we have declined to closely examine the
regulatory motive or effect of revenue-raising measures." That doesn't, of
course, excuse him from examining the regulatory intent at all – and, as is
almost incontrovertible, the mandate's penalty was intended by Congress far from
primarily as a revenue measure, but rather as a way to compel behavior. Such an
intention makes the penalty anything but a tax, and anything but an allowable
use of Congress' enumerated powers.
****
All of which is to say that
Roberts has conjured up an unskilled magician's attempt at multiple sleights of
hand. As has been well discussed elsewhere, Roberts himself has acknowledged
that accepting the penalty as a tax is hardly the "most straightforward" or
"most natural" reading of the law. Nonetheless, he explains (citing precedent),
"every reasonable construction must be resorted to, in order to save a statute
from unconstitutionality." But here, again, he stretches precedent completely
out of all reasonable context.
The maxim to choose an
interpretation of a law that would accept the law as constitutional, over an
alternative interpretation that doesn't, is meant to apply in cases where the
two interpretations are equally or near-equally reasonable. Here, though, as we
have seen, Roberts had to strain and stretch and twist and skate and float and
use misdirection in order to somehow, some way, pretend to impose a plausible
interpretation on an assertion that is not even in the same logical solar system
as interpretations that are "straightforward" and "natural."
If Congress wanted to create a
taxing system to fund ObamaCare or to incentivize insurance purchases, it could
have done so. This isn't just a matter of changing labels; it would have
required a significantly different scheme. As the conservative dissenters noted,
"We have no doubt that Congress knew precisely what it was doing when it
rejected an earlier version of this legislation that imposed a tax instead of a
requirement-with-penalty…. Imposing a tax through judicial legislation inverts
the constitutional scheme, and places the power to tax in the branch of
government least accountable to the citizenry."
John Roberts didn't defer to
Congress in the ObamaCare case; he just re-wrote the law (on the mandate and on
Medicaid) by himself in order to save Congress' handiwork from its own
infirmities. This isn't judicial minimalism; it's judicial meddling. It is both
unsightly and unseemly. And it probably did lasting damage to
