A VAST NEW TAXING POWER
The Chief Justice's ObamaCare ruling is far from the check on Congress of right-left myth.
The Wall Street Journal
July 2, 2012, 8:12 p.m. ET
The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.
Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.
This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.
It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.
His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax. Ninety years of precedents have honed precise and widely divergent legal meanings for taxes and penalties for violating laws or regulations, and they are not interchangeable.
The Chief Justice did not simply change a label—as if Congress said something was a penalty when it was really a tax. Rather, these categories are defined by their purposes and effects, by how they operate in practice. Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blur—legitimate taxes may also have strong punitive aims—but scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.
Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. The taxing power like the Commerce Clause is broad, and the courts are generally deferential. But all powers the Constitution enumerates are also limited, and these limits—unique to each power—must be meaningful and enforceable by the legal system.
The Chief Justice's compounding errors deprive the taxing power of any viable limiting principles. Article I, section 8 gives Congress an independent grant of power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxes must originate in the House, the political body designed to be most responsive to voters. There are also important additional safeguards on the type of exactions known as "direct taxes."
Indirect taxes—"duties, imposts and excises"—are taxes on activities and products. They are passed on by a seller, triggered by a transaction and more or less optional: Consumers don't have to buy taxed goods and services. Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.
America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.
That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.
Chief Justice Roberts concedes that "Congress's ability to use its taxing power to influence conduct is not without limits" and that in the 19th and early 20th centuries the Supreme Court "policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority." But then he writes that "more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures."
His error—or more likely, his deliberate sleight-of-hand—is that this modern jurisprudence does not deal with direct taxes but indirect taxes and income taxes. Income taxes were authorized in 1913 by the Sixteenth Amendment, which was necessary to bypass the other important limit on direct taxes, called apportionment.
The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population. Apportionment's onerous limits were meant to protect against abuse and sectional favoritism. If Congress uses direct taxes, the residents of South Carolina will pay the same overall share as Massachusetts, and so forth.
But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."
But if not a direct tax, then what kind of tax is it? It is not an indirect tax because it applies to a failure to purchase something, what the Chief Justice calls "an omission," not an optional transaction. It is not a tax on income because that merely hits "accessions to wealth," not what people choose or choose not to do with those accessions.
The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.
In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.
The Chief Justice seems to understand this, so he tries to articulate his own new limiting principle for the tax power. His mandate tax isn't a mandate but merely a suggestion: choose to buy insurance or "pay money into the Federal Treasury, no more," an act he likens to a tax on gasoline. He also temporizes that "taxes that seek to influence conduct are nothing new."
True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.
Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.
The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.
One possible saving grace is that this center-right country remains suspicious of taxation, and therefore the Chief Justice increases accountability somewhat through truth-in-labeling. But note how Democrats are already claiming that the ObamaCare mandate is not really the tax that is the only reason it was upheld.
White House chief of staff Jack Lew said Sunday that "The law is clear. It's called a penalty." Neither sentence is true. On Friday, the Obama re-election "truth team" was even less subtle in a memo titled "They're lying about ObamaCare" that made the same claim. Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes.
Chief Justice Roberts's ruling is careless about these bedrock tax questions, and they are barely addressed by either the Court's liberal or conservative wings. His ruling, with its multiple contradictions and inconsistencies, reads as if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.
If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.
"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.
A version of this article appeared July 2, 2012, on page A10 in the U.S. edition of The Wall Street Journal, with the headline: A Vast New Taxing Power.