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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