Chief Justice Robert’s Switch on the Taxing Power

July 29th, 2012

Just for fun, I decided to look back at my instant analysis of oral arguments in NFIB v. Sebelius. This discussion on the taxing power seems interesting, namely because Chief Justice Roberts seems quite incredulous, and doubts the exact taxing argument he ultimately accepted.

You can listen to it here at The Affordable Care Act Cases 52:54 – 53:25 The Oyez Project at Chicago-Kent. Just hit the play button below.

Scalia firsts asks about the taxing power.

JUSTICE SCALIA: The President said it wasn’t a tax, didn’t he?
GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were — and I think it’s clear that — that the — the — they were exercising the tax power as well as -JUSTICE
SCALIA: You’re making two arguments. Number one, it’s a tax; and number two, even if it isn’t a tax, it’s within the taxing power. I’m just addressing the first.
GENERAL VERRILLI: If the President said -JUSTICE
SCALIA: Is it a tax or not a tax? The President didn’t think it was.
GENERAL VERRILLI: The President said it

wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance.
I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.

Kagan, repeating a point she made yesterday, noted that Congress determined to not call it a tax:

KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you’re suggesting we should just look to the practical operation. We shouldn’t look at labels. And that seems right, except that here we have a case in which Congress determinedly said this is not a tax, and the question is why should that be irrelevant?
GENERAL VERRILLI: I don’t think that that’s a fair characterization of the actions of Congress here, Justice Kagan. On the — December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to39 on that proposition.
The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don’t think this is a situation where you can say that

Congress was avoiding any mention of the tax power.
It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn’t done so, it seems to me that it’s — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.

What obligation? CJ calls BS on SG:

CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is — in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say -CHIEF
JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.

GENERAL VERRILLI: Well, I — you know, I don’t — there is nothing that I know of that illuminates that, but certainly

The Solicitor General said the Court has an “obligation to construe it as an exercise of the tax power, if it can be upheld on that  basis.”

To that, the Chief responds quite critically, and interrupts the Solicitor General, and asks if it is a tax, why didn’t Congress call it a tax. The Chief does not seem particularly convinced on this issue, with the SG having a nonsensical answer of “there is nothing I know of that illuminates that.”

Yet, that is the *exact* issue he later accepted.

That is the entirety of the questions the Chief asked SG about the taxing power.

Interestingly, here is Verrilli’s closing argument:

But if there is any doubt about that under the Commerce Clause, then I urge this Court to uphold the minimum coverage provision as an exercise of the taxing power.
Under New York v. United States, this is precisely a parallel situation. If the Court thinks there is any doubt about the ability of Congress to impose the requirement in 5000A(a), it can be treated as simply the predicate to which the tax incentive of 5000A(b) seeks accomplishment.
And the Court, as the Court said in New York, has a solemn obligation to respect the judgments of the democratically accountable branches of government, and because this statute can be construed in a manner that allows it to be upheld in that way, I respectfully submit that it is this Court’s duty to do so.

To which the Chief replied:

CHIEF JUSTICE ROBERTS: Thank you, General.

Thank you, indeed.