Instant Analysis: NFIB v. Sebelius
This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.
First, let me break down the portions of the opinion.
Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):
The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.
Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.
Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.
Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.
Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.
The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.
Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).
I got through most of the Chief’s opinion. I’ll do more later.
Chief Justice Owner, Err, John Roberts’s Controlling Opinion
Roberts opens up by noting that he is not second-guessing the legislature.
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.
And the narrow, limited role of the Courts to police the boundaries:
Resolv- ing this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.
Roberts succinctly states the notion that our liberties are protected in conjunction by the prohibitions in the Bill of Rights, as well as the structural limitations on what Congress can do (many only care for the former, and not the latter):
Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative pro- hibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enu- meration of powers sufficed to restrain the Government.
There is a brief discussion of the police powers, reserved to the states, including “punishing street crime, running public schools, and zoning property for development.” The last item is governed by the 5th Amendment. But, “This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.”
At some point Ilya Somin will use this quote in his “voting with your feet” work:
Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed.
Has the Court ever applied the Necessary & Proper clause power to the taxing power? He cites McCulloch, but that involved the commerce clause.
The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
And more on the limited role of the Court, and the need to defer to Congress’s decisions.
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices
Roberts cites his predecessor, John Marshall three times in this paragraph, including one Marshall wrote pseudonymically. The Chief is really trying to wrap himself in Marshall’s robe.
Our deference in matters of policy cannot, however, become abdication in matters of law. “The powers of the legislature are defined and limited; and that those lim- its may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall’s Defense of McCulloch v. Mary- land 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to en- force the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madi- son, supra, at 175–176.
The questions before us must be considered against the background of these basic principles.
Just a general recitation of the provisions of the ACA and the procedural posture of the different litigations.
This part rejects the Anti-Injunction Act argument. This is an argument that no one, including the federal government accepted. Oh yeah, Judge Kavanaugh bought it. He looks a lot better than the Chief now. I wonder how this case will affect the next Republican nomination. David Bernstein blogged that GWB’s sole criterion was detainee cases. Maybe federalism and limited government will be the litmus test for the next Republican president?
So, we get to the bizarre contradiction. The responsibility provision is a tax for purposes of the taxing power, but not for purposes of the AIA.
Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit.
The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”
Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally pre- sumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).
The dissenters wrote their own analysis on the AIA, even though they agreed with Roberts’s outcome, if nothing else, because this inconsistency does not make much sense. Even Sotomayor expressed befuddlement at the Solicitor General’s position during oral argument.
And what’s interesting is that Roberts defers to the governments–and not the challengers–construction of the AIA. I think this is a win for the Administration that hasn’t been given much attention.
In light of the Code’s consistent distinction between the terms “tax” and “as- sessable penalty,” we must accept the Government’s in- terpretation: §6201(a) instructs the Secretary that his authority to assess taxes includes the authority to assess penalties, but it does not equate assessable penalties to taxes for other purposes.
So that’s that. Onto Part III.
The Affordable Care Act does not require that the pen- alty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.
In this part, Roberts writes for himself about the commerce power, and the necessary and proper clause argument. While Roberts accords the joint dissent, the joint dissent does not agree with, let alone even *mention* Roberts. Jan Crawford says this was an intentional slight of Roberts.
Roberts begins by explaining the guaranteed issue and community rating provisions, and why the mandate was created to solve the cost-shifting problems.
This sub-section focuses on the commerce clause.
Robert’s recitation of the standard uses the word activity over-and-over again.
We have recognized, for example, that “[t]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states,” but extends to *activities* that “have a substantial effect on interstate commerce.” United States v. Darby, 312 U. S. 100, 118–119 (1941). Congress’s power, more- over, is not limited to regulation of an *activity* that by itself substantially affects interstate commerce, but also extends to *activities* that do so only when aggregated with similar *activities* of others. See Wickard, 317 U. S., at 127–128 . . . The power to regulate commerce presupposes the existence of com- mercial *activity* to be regulated. . . . Our precedent also reflects this understanding. As expansive as our cases construing the scope of the com- merce power have been, they all have one thing in com- mon: They uniformly describe the power as reaching *“activity.”* It is nearly impossible to avoid the word when quoting them. . . .
Our precedents recognize Con- gress’s power to regulate “class[es] of *activities*,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153
Roberts then quotes from Lopez, Perez, Wickard, NLRB v. Jones & Laughlin, which all use the word “activity.”
In response to RBG’s citation of two eminent domain cases from the late 1890s that do not use the word “activity,” Roberts writes “The fact that the Fifth Amendment requires the payment of just compensation when the Government exercises its power of eminent domain does not turn the taking into a commercial transaction between the landowner and the Government, let alone a government-compelled transaction between the landowner and a third party.”
You know, usually the Chief’s writing is so, so crisp and persuasive. Reading this footnote, and the other one in response to RBG’s line about compelled mandate was unclear and cloud. I had to read it twice. I found neither persuasive, and struggled to understand it. This was certainly rushed. And the fact that all points in response are buried in footnotes shows how quickly this was put together.
Here is the first appearance of some form of an unprecedented argument–though he does not use the magic word.
But Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product.3 Legislative novelty is not nec- essarily fatal; there is a first time for everything.
Roberts–for the first time–responds to RBG’s examples of congressional mandates
The examples of other congressional mandates cited by JUSTICE GINSBURG, post, at 35, n. 10 (opinion concurring in part, concurring in judgment in part, and dissenting in part), are not to the contrary. Each of those mandates—to report for jury duty, to register for the draft, to purchase firearms in anticipation of militia service, to exchange gold currency for paper currency, and to file a tax return—are based on constitutional provisions other than the Commerce Clause. See Art. I, §8, cl. 9 (to “constitute Tribunals inferior to the supreme Court”); id., cl. 12 (to “raise and support Armies”); id., cl. 16 (to “provide for organiz- ing, arming, and disciplining, the Militia”); id., cl. 5 (to “coin Money”); id., cl. 1 (to “lay and collect Taxes”).
So what? This seems entirely unpersuasive. The only argument here is that it is unpersuasive. Roberts does not all address why mandates could be done under these other provisions. And a thought just occurred to me. Could a flat-out purchase mandate be imposed as necessary and proper incidence to the taxing power? That is no longer unprecedented. As the Court kind did this. Forget penalties or taxes.
Roberts buys Mike Carvin’s argument–regulating commerce presupposes commerce exists. If congress can create regulate commerce it creates, the other enumerated provisions in Article I, s. 8 would be superfluous.
The power to regulate commerce presupposes the existence of com- mercial activity to be regulated. . . .If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unneces- sary. The language of the Constitution reflects the natu- ral understanding that the power to regulate assumes there is already something to be regulated.
Ah, the old “mere surplusage” argument from Marbury. More Marshall citations.
You know, I’ve thought similar things about federal question jurisdiction. If Congress can make any statute involving some federal question, it can create unlimited federal court jurisdiction. This ties into my thinking about the constitutionality of exclusive jurisdiction. Anyway back to the question at hand. . . .
So, Roberts works his way to the point that the mandate compels individuals to become active, and ties it into a nice slippery-slope-unprecedented-argument:
The individual mandate, however, does not regulate existing commercial activity. It instead compels individ- uals 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 Con- gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do- main to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
And here comes the broccoli mandate, except substitute wheat (from Wickard) with broccoli
The aggregated decisions of some consumers not to purchase wheat have a substantial effect on the price of wheat, just as decisions not to purchase health insurance have on the price of insurance. Congress can therefore command that those not buying wheat do so, just as it argues here that it may command that those not buying health insurance do so. The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do.
Limiting. No limiting principle.
And here he gets closer to broccoli–just “vegetables.”
Under the Gov- ernment’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.
This libertarian portion is couched in Madison.
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.
That is not the country the Framers of our Constitution envisioned. James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.”
Is that even an originalist argument? This isn’t what our Founders expected? Eh, methodology, feh. At some point I’ll add up all the citations to the Federalist. This seems to be the extent of any originalist research (unless on counts citations to Marshall).
Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government
In other words, giving congress the power to compel mandates through its commerce power is bad. But letting congress do it through its taxing power is ok. Got that?
And this footnote from the Chief in response to RBG seems so, so weak.
In an attempt to recast the individual mandate as a regulation of commercial activity, JUSTICE GINSBURG suggests that “[a]n individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance.” Post, at 26. But “self-insurance” is, in this context, nothing more than a de- scription of the failure to purchase insurance. Individuals are no more “activ[e] in the self-insurance market” when they fail to purchase insurance, ibid., than they are active in the “rest” market when doing nothing.
What is the rest market? And really, when I am resting, it is because I chose to rest. That is a decision. Choosing to sleep is a decision. Unless I fall asleep against my will. Not sure what the mens rea requirements are for a nap.
This section is a reverse Herbert-Spencer argument. We don’t care what economists think, we look to the Constitution.
To an economist, perhaps, there is no difference between
activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not meta- physical philosophers.
What kind of ridiculous argument is that? WTF does that even mean. Are we asking what the Founders would have thought of health insurance markets? Practical statesmen? Meta-physical philosophers? (Thomas Jefferson–though not a framer–would probably subscribe to that group). We are talking about standard economics. The Founders read Adam Smith. The Wealth of Nations was standard reading. It is basic supply and demand. This argument is insulting. See, if a GMU law & econ clerk was there, this would’ve been much better.
Anyway, that previous statement does not support what comes after
South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate com- merce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this un- derstanding. There is no reason to depart from that un- derstanding now.
What understanding? Roberts speculated, with no evidence, about understanding the framers would have had about the insurance market, and then said he won’t depart from it! That is like bundling some straw, building a straw man, knocking it down, and then putting up another straw man in its place.
Roberts cites this line from Oral Argument. When the Court cites an argument in the transcript, that is not in the briefs, that probably means you should not have said it at arguments. Hear that SG?
The Government regards it as sufficient to trigger Congress’s authority that almost all those who are unin- sured will, at some unknown point in the future, engage in a health care transaction. Asserting that “[t]here is no temporal limitation in the Commerce Clause,” the Gov- ernment argues that because “[e]veryone subject to this regulation is in or will be in the health care market,” they can be “regulated in advance.” Tr. of Oral Arg. 109 (Mar. 27, 2012). The proposition that Congress may dictate the conduct of an individual today because of prophesied future ac- tivity finds no support in our precedent.
Prophesized future? Is that something like the doctrine of inevitable discovery in Fourth Amendment law? Where a search is valid, even if the Constitution was violated, because the cop would have found evidence anyway? Or what about the doctrine of anticipatory repudation in contract law? I digress.
But we have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases, including those cited by JUSTICE GINSBURG, post, at 20–21, involved preexisting economic activity. See, e.g., Wickard, 317 U. S., at 127–129 (producing wheat); Raich, supra, at 25 (growing marijuana).
That is just unprecedented, stated differently.
Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.
And he returns to the police power of the state, which was addressed earlier. And Roberts says that health care is no different from broccoli.
But cars and broccoli are no more purchased for their “own sake” than health insurance. They are purchased to cover the need for transportation and food.
This sounds a bit like a prognostication of the future:
And for most of those targeted by the mandate, significant health care needs will be years, or even decades, away. . . . The proximity and degree of connection between the mandate and the subsequent commercial activity is too lack- ing to justify an exception of the sort urged by the Gov- ernment. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sus- tained under a clause authorizing Congress to “regulate Commerce.”
Next Roberts turns to N&P clause. In other words, the Court is deferential except where it’s not deferential.
As our jurisprudence under the Necessary and Proper Clause has developed, we have been very deferential to Congress’s determination that a regulation is “necessary.” We have thus upheld laws that are “‘convenient, or use- ful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” Comstock, 560 U. S., at ___ (slip op., at 5) (quoting McCul- loch, supra, at 413, 418). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution.
Has Court ever struck down a law as a violation of N&P? I mean, N&P standing by itself, not like a case like Printz or New York that were really 10th amendment cases
Applying these principles, the individual mandate can- not be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause in- volved exercises of authority derivative of, *and in service to,* a granted power. . . The individual mandate, by con- trast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enu- merated power.
Talk about a weak QED. The “in service to” language is not to be found in Breyer’s Comstock opinion. I like that Gloss, but Roberts added it. Breyer just had some feckless multi-factor balancing test.
Ultimately, Roberts keeps going back to a slippery slope argument.
Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it.
Really poor choice of words with “preexisting activity.” Just makes me think of “preexisting condition.”
Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.
This was the point of Ilya Somin’s Amicus for WLF. But it is here weakly developed. No citations or explanation. Weak sauce.
Roberts distinguishes away Raich in like 3 sentences.
Raich thus did not involve the exercise of any “great substantive and independent power,” McCulloch, supra, at 411, of the sort at issue here. Instead, it concerned only the constitutionality of “indi- vidual applications of a concededly valid statutory scheme.” Raich, supra, at 23 (emphasis added).
That is a pitiful distinction.
Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance re- forms. The commerce power thus does not authorize the mandate.
What do you mean “just as.” Would you care to explain to us (you are writing for yourself, so you have to convince no one ) what your link is between Commerce and N&P?
And then, he closes that section with this!
Accord, post, at 4–16 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting).
I usually ignore blue book symbols, but is really important here. My blue book is sitting 3,000 miles away across the pond, so I cite wikipedia:
“Accord” is used when two or more sources state or support the proposition, but the text quotes or refers to only one; the other sources are then introduced by “accord.” In other words, accord means “I just cited something that supports my proposition, and now here’s another thing that supports it too.”
So what does this mean? He didn’t at any point mention the opinions of the 4 dissenters. He only responded directly to Ginsburg. Similarly, the four-dissenters never mention Roberts’s opinion. It is like they are giving each other the silent treatment. All the Chief-Umpire could muster was a frickin accord.
So where does this leave us? The 4 dissenters clearly didn’t join JGR’s opinion. JGR gave a weak bluebook cite, but didn’t join their opinions. Their rationales are similar, but not totally reconcilable.
I don’t think there is any solid 5-vote rationale for commerce clause or N&P jurisprudence in this frickin 200 page opinion.
The dissenters may have done themselves a huge disservice by not joining the Chief’s opinion. At the least they could have salvaged some commerce clause limitations for the future.
So let’s go to JGR’s transition section.
That is not the end of the matter. Because the Com- merce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.”
Why? If it is constitutional as a tax, why waste 30 pages discussing commerce and necessary and proper? Perhaps if he wrote it in response to a dissent, that would be fine, but he doesn’t mention the dissent (really the concurring opinion here). That entire section seems inconsequential dicta. Judges (both of them) frequently deleted stuff I wrote that was not necessary to the disposition of cases. This even further weakens any claims that the Chief’s opinion can be cited in the future.
The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as order- ing individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.
Why couldn’t the government issue a mandate as a necessary and proper incident of its enumerated taxing power?
Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a rea- sonable one.
Why not just start at the alternate grounds. This isn’t a law review article Chief, where you are supposed to opine on stuff that doesn’t matter to Courts (you see what I did there).
Ah, no vehicles in the park! I always wished it would make it into a judicial opinion. Just not this one.
The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park.
But to waste this away as a segue to constitutional avoidance? Seems a bit academicy. And here comes the slight-of-hand.
The most straightforward reading of the mandate is that it commands individuals to purchase insurance. . . . Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earn- ing income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.
But buying gasoline or earning income is activity. Doing nothing is not activity. You just spent 30 pages explaining that. But does the activity-inactivity distinction only apply to commerce clause powers? Why not taxing clause power. Congress has never taxed inactivity. Why is that not unprecedented too? What about a horrible slippery slope?
The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.
I find this turn so unconvincing. I’ll finish Part III-C, where the other 4 join the Chief.