New Essay: “The Saving Construction at Five Years”

March 4th, 2018

Last year, the St. Thomas Journal of Law & Public Policy hosted a symposium on the 5th Anniversary of NFIB v. Sebelius. My address was titled “The Saving Construction At Five Years.” In short, it has not held up well. I’ve actually come to grips with the fact that the Chief Justice read the penalty as a penalty for purposes of the Anti-Injunction Act, but a tax for purpose of the taxing power. I find that analysis implausible, but I can accept it. I still cannot accept the Chief’s flippant treatment of whether that tax was a direct tax.

Here is an excerpt:

The difficulty with the Chief’s opinion—and I’m going to focus on something that most people don’t care about but actually matters quite a bit to me—is what does it mean to be a tax? Congress has fairly specific authority over taxing. This is a question going back to the 1790’s. First, this is not an income tax. Second, you can have certain types of excise taxes like on whiskey.74 This is not really a tax on buying something. You can have something called a direct tax, but those have to be apportioned by population.75

The Constitution has fairly strict rules over how taxes are imposed on people. So, what kind of tax is this? Is it an excise tax? Is it an income tax? Is it a direct tax? This is a major constitutional question—a question the Chief Justice ignored. So, in his zealous attempt to avoid the constitutional question concerning the commerce clause, he basically made something up. My friend Ilya Shapiro calls this the unicorn tax. 76 It’s a tax never before seen, that’ll never before seen again.

So, my antagonism to Chief Justice Roberts’ saving construction is not even about the Anti-Injunction Act—I’ve gotten over that part. I still can’t get over the taxing power of the Constitution. You made it up, Chief Justice John Roberts, admit it. The Solicitor General put like three or four sentences in his brief on this point and basically said, yeah, it’s a hard point.77

The entire opinion is a sham. You don’t avoid one constitutional problem by creating another. That’s not how it works. You don’t read a statute in the least plausible way such that it raises a very serious constitutional issue that’s plagued us since the Hylton case in 1796. 78 This was an old question that Chief Justice Roberts, with a lick and prayer, dismissed.

That’s not constitutional law. And I think the way to understand the Chief’s opinion, we really have to go a couple years later to the King v. Burwell decision which I talk about in my second book, Unraveled. 79 The Chief Justice in King v. Burwell upheld the reading of the statute that the government wanted—I won’t get into the details.80 But the Chief said that the purpose of the ACA is to improve health insurance, not to destroy it, and we will read the statute in that fashion.81

Statutes are complicated. They don’t have single purposes. They have lots of purposes, federalism among others, right. The dissent by Justice Scalia— which would be his last dissent delivered from the bench—criticized the Chief Justice, and you could tell a lot of the Scalia oomph from NFIB spilled over into the King dissent. 82 And, he said, “This Court has now twice saved this law. We should perhaps not call it not Obamacare, but SCOTUScare.”83 And, Scalia wrote about the Chief’s opinion, It seems that we are now applying a special set of rules for this new law and perhaps one day this law will achieve the status of perhaps the Social Security Act, or the Taft-Hartley Act, or others.84

It was only five-years-old at the time. But for now, the guiding principle of the ACA is that the law must be saved and that the Chief Justice has decided—for whatever reasons and you can ask about it during Q and A— that this law must be saved. So, after five years, the saving construction, my friends, has not aged well. There’s been no effort to defend it. I haven’t seen anyone actually agree with it as a matter of constitutional interpretation that reconciles the taxing power. And it, I think, shakes the Chief’s commitment to being this neutral arbiter. I think his concern for legitimacy and institutionalism trumps his own commitment to the Constitution, and for that, we are all much worse off. Thank you very much for your attention.