Me thinks the Gentlemen doth protest too much!

Like many of my fellow Americans, I waited with bated breath for the much-anticipated decision of the Supreme Court on Obamacare. I believe most of this law to be unnecessary, bad policy and counter-productive. With that said, you can imagine my disappointment when I saw the headlines.

However…unlike most, I went directly to the US Supreme Court website and downloaded the draft opinion. I guess being a lawyer makes this step more comfortable, but I like to know exactly what the Court ruled and on what rationale before I start screaming “treason” from the rooftops.

Sadly, during an 8-hour road trip to pick up my kids from Grandma’s house, I subjected myself to at least two hours of The Greatly Deluded One, Mark Levin, as he railed against Chief Justice Roberts. Just today, I read a much more reasonable but also misguided analysis of the opinion by Jim Blasingame. All the empty rhetoric and hot air prompted me to post an accurate and analytically sound explanation of the opinion here.

In this post, I will address only the decision with respect to the “individual mandate” provision.

The Mandate

The most hotly contested provision in the Affordable Care Act (a/k/a ObamaCare) is the “individual mandate.” The Chief Justice explains that the Government advances two theories that justify the “individual mandate.”

First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act’s other reforms.

Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’s power to tax. According to the Government, even if Congress lacks the power to direct individuals to buy insurance, the only effect of the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a tax.

Commerce Clause

The Chief Justice foreshadows the real reason for his decision under the “tax and spend power” early in his analysis of Congress’s Commerce Clause power. He summarizes the Government position as follows: “Because state and federal laws nonetheless require hospitals to provide a certain degree of care to individuals without regard to their ability to pay…hospitals end up receiving compensation for only a portion of the services they provide.” In other words, poor policy and poorly drafted legislation with respect to mandatory emergency room care has created a financial problem for hospitals that we should now address by even worse policy. I can’t imagine a more exaggerated wink from the Chief Justice. The question of the “individual mandate” is primarily a political question that is to be resolved in the Legislative Branch rather than by the Judicial Branch as a consequence of the separation of powers required by the Constitution.

Foreshadowing notwithstanding, the Chief Justice thoroughly and squarely confronts the real problem with relying on Commerce Clause power to compel the purchase of health insurance.

[I]t is now well established that Congress has broad authority under the [Commerce] Clause….Given its expansive scope, it is no surprise that Congress has employed the commerce power in a wide variety of ways to address the pressing needs of the time. But Congress has never attempted to ely on that power to compel individuals not engaged in commerce to purchase an unwanted product.

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous.

The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated….As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.”

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals preciselybecause they are doing nothing would open a new and potentially vast domain to congressional authority.

The Chief Justice helpfully provides an illustration of the absurdity of the individual mandate if justified under the Commerce Clause.

To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance. Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addresses the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures–joined with the similar failures of others–can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.

The Chief Justice concludes his analysis of commerce power as it applies to the individual mandate as follows:

The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”

Tax & Spend Power

With clear and logically sound precedent set keeping Congress on a leash with respect to the Commerce Clause, the Chief Justice then transitions to the more troublesome question of Congress’s power to tax.

Where nutters like Levin and other more reasonable but inadequately informed persons get derailed is in the role of the judiciary in our republican form of government. The Legislative Branch is, and has always been, the place where the truly political questions are resolved. In effect, the framers of the Constitution told us we can elect whomever we like but then we have to live with our decision. In this instance, the Chief Justice quite properly applied precedent in order to “save” the Affordable Care Act from being stricken as unconstitutional and invited the public to participate in the on-going political debate on the propriety of this “tax” next November.

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes…Under that theory, the mandate is not a legal command to buy insurnace. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income….The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U.S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895).

[I]t is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity.

We do not make light of the severe burden that taxation–especially taxation motivated by a regulatory purpose–can impose. But imposition of a tax leaves an individual with a lawful choice to do or not to do a certain act, so long as he is willing to pay a tax levied on that choice.

The Affordable Care Act’s requirement that certain individuals pay a finanical penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

The Moral of the Story

The claptrap arising from both sides of the aisle regarding this historic opinion illustrate the truly political nature of the controversy and underscore the wisdom of Chief Justice Roberts and his opinion.

The separation of powers required by the Constitution forces citizens to be responsible for their decisions in the ballot box. If we, as citizens, elect irresponsible or corrupt individuals as our representatives and our governors, then we have only ourselves to blame for the consequences of that decision. We may rely on the Constitution to maintain the boundaries of governmental power, no matter who holds office, but we cannot expect the judiciary to intervene when we dislike the outcome of the political process.

As for Mark Levin and his supporters, it is irresponsible to resort to ad hominem attacks on Chief Justice Roberts when he properly exercises his authority within the bounds set upon the judiciary by the Constitution. It is inexcusable to resort to name-calling and mis-characterization of the issue simply because you are disappointed with the outcome of a case or the reasoning of a particular jurist.

The moral of the story is simply this: Do your homework and vote responsibly!

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About Jim Hanson

I am a sinner saved by God's grace who is learning day-by-day how to die to self so that I can live in Christ.
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