Guest Post: Obamacare, Revisited

If nothing else, Conflict Revolution aspires at least to the bottom rungs of the pundit class, so it should come as no surprise that we've given the Supreme Court decision on health care some good air time over the past few days.  Adding today to our burgeoning portfolio of analysis on this subject is Stephen DeGenaro, the second most well-known law student in America once or currently affiliated with Georgetown University.  CR readers may remember Steve's excellent legal analysis of the SCOTUS arguments over Obamacare back in March, and now that the case is settled, the closest thing Conflict Revolution has to a legal correspondent is back to dissect the final ruling. 

ACA RULING A GOOD DAY FOR DEMOCRACY
By Stephen DeGenaro

Matt has graciously asked me back to reflect upon the Obamacaretax decision from this past Thursday’s case, and I’m more than happy to oblige and provide insight where I can.  I have not gotten around to reading more than a few pages of the opinion (though I plan on doing so this summer and I encourage everyone else to do so – I think it’s a borderline civic duty to read at least a summary of the most important SCOTUS decisions in the past 25 years), but I hope to do a couple things with this essay.  First, I plan to give a basic Con Law 1 summary of the Taxing Power generally so you have a little knowledge about the substantive law.  Second, I want to briefly make some observations and thoughts I have as a result of the decision and the media attention it has been receiving. 

As a starting item, it should be noted that the taxing power is not as clearly defined as the Commerce Clause power is.  It is rarely tested at the highest court in the land, and the substantive law may seem a little counter-intuitive at first.  So if you are confused by this, do not worry: at least you didn’t need to take a test on it. Further, remember that this is an extremely basic description of the taxing power. 

Pursuant to Article 1, Section 8, Clause 1, Congress has the power to lay and collect taxes.  Congress cannot use the tax as a penalty to punish behavior that it is not allowed to regulate under the Constitution. However, the court will only invalidate a tax on the ground that it is a penalty if the tax is extraneous to any tax need (the tax does not generate any tax revenue). In United States v. Kahriger, the Court established deference to Congress’s determination: as long as the tax generates some tax revenue, the court will not invalidate the tax on the grounds that it goes beyond the taxing power (the tax may violate some other constitutional ground, but it is constitutional pursuant to this provision of the Constitution).

So this may be confusing, especially since the Obama Administration keeps insisting that the mandate is a penalty not a tax.  However, remember the administration has a policy incentive to not refer to the mandate as a tax.  Also keep in mind that law often uses words differently than how they are colloquially used.  The important thing to take from the previous paragraph is that the mandate may still be a constitutional tax even if it has punitive effects as long as it is generating tax revenue.  For example, think of cigarettes: a large number of states place a very high tax upon cigarettes as a means to penalize people who buy them.  However, the cigarette tax generates a substantial amount of tax revenue.  Therefore, it is still constitutional.  That is how something that, for political purposes is considered a penalty, but legally is a tax. 

Now to the more interesting thing about the trial: the aftermath of the decision.  I have a few things that are worth mentioning because I find them interesting.

First, this proves that pundits generally do not know what they are talking about.  A lot of people were predicting, especially after the oral arguments, that the case would come down along partisan lines.  It just goes to show you that Supreme Court decisions that are as complex as we may think (further underscored by the immigration decision announced a few days before the Obamacare ruling).  Outcomes are not necessarily predictable.

 

Second, and one that is most closely related to the first point: Chief Justice Roberts decided this case on its merits, and not out of any political considerations whatsoever.  It has been frustrating to see both pundits with no legal training at all affirmatively declare that it was a political decision, but it has been even more so to see legal minds say it: they absolutely should know better.  For what it’s worth, Chief Justice Roberts’ jurisprudence in this case is consistent with his past holdings: Burkean conservative who will exercise judicial restraint and not strike down an act of Congress unless there is no way to read the statute constitutionally.  Furthermore, Chief Justice Roberts is one of the three most brilliant minds in the American legal community, and might be the best lawyer in the country.  He did not decide this case based on extrinsic considerations – he is way more professional than that.  In fact, he summed this up so eloquently that I could not come close to bettering, so I’ll quote directly from the opinion: 

“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

I firmly believe this is the case, and I strongly encourage you all to reserve your judgment as well. 

Transitioning from that quote is my third point, and hopefully a positive note to end on: the outcome gives us a presidential election that will be considered strongly on the merits on the presidential philosophies of each candidate moving forward, and not on some bickering about the legality or constitutionality of some law that has already been decided.  In a way, both sides get to claim a policy victory.  Democrats get to run on the mandate as a step towards providing increased benefits to Americans if they are elected in such numbers so as to control both houses and the Presidency.  At the same time, the fact that it has been deemed a tax allows Republicans to run on their lower taxes platform, and this decision will most certainly revitalize the Tea Party base of the GOP.  In November, the election will be a referendum between these two ideals.  Like Chief Justice Roberts indicated, we get to make that decision – it is as much our obligation to do so as it was his to decide ACA’s constitutionality. 

Thanks once again to Matt and the other Stephen for inviting me to contribute.  I look forward to the opportunity to join the discussion again.

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