During the oral argument on ObamaCare, the justice who most concisely destroyed the government’s argument that it was a “tax” was … Chief Justice John Roberts.
Here was the colloquy between the chief justice and Solicitor General Donald Verrilli during the March 27, 2012 oral argument:
GENERAL VERRILLI: … it seems to me that 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.
CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
GENERAL VERRILLI: Well —
CHIEF 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 objectives. 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. [Emphasis added].
In his eventual opinion, the chief justice concluded that what Congress expressly, purposely, and repeatedly called a “penalty” (not a “tax”), to be imposed on those who did not comply with the legislative mandate that they “shall” obtain insurance, could fairly be read as a tax — even though a tax is neither what Congress called it nor intended it to be — and thus within the Constitutional power to levy taxes. As an old law school professor used to say, I get it all except the “thus.”
Henceforth law professors will have to teach their students that the Constitutional provision allowing Congress to levy taxes includes not only (1) the power to levy taxes on things you do, income you earn, or other activities, but also (2) a judicially created power to levy “shared responsibility payments” on commerce you don’t engage in. This is an argument that all five appellate courts that considered the argument on the merits before it reached the Supreme Court rejected (one appellate court ruled it was a “tax” for purposes of the Anti-Injunction Act and dismissed the case without reaching the merits of any Constitutional question).
Writing for the Court, the chief justice held that the “shared responsibility payment” is a tax, even though Congress repeatedly called it a “penalty” in the law; went out of its way not to label it a tax; and had ObamaCare supporters, from the president on down, repeatedly deny it was a tax while the legislation was being considered — only to turn around and argue in court that a tax is what it was. Now that the chief justice has held it was a tax, the administration is again denying it was a tax.
The “payment” was not designed to generate revenue, but to compel people to comply with the mandate. If the law works as intended, no one will make any “shared responsibility payments” at all, but rather purchase the mandated insurance. The “tax” in that case will raise no revenue, but it will have achieved its goal: enforcement of the mandate. That is the hallmark of a penalty, not a “tax.” In his colloquy with the solicitor general, Chief Justice Roberts skillfully established that point.
So the law as it stands now is that Congress cannot make us eat broccoli, but can mandate everyone do so and impose a failure-to-eat-broccoli tax on anyone not complying with the mandate. Congress can apparently mandate anything, as long as it accompanies the mandate with a failure-to-do-it tax that need not be called a tax.
The chief justice’s opinion is the maraschino cherry on a legislative process marked by extraordinary cynicism. In addition to the creation of a disingenuous new concept — a “shared responsibility payment” that can be treated as a non-tax for purposes of passing the law and then a tax for purposes of defending it in court — the ObamaCare legislation featured:
1. A huge new “Medicare contribution” by “millionaires” making $200,000 or more that was (a) not a contribution and (b) did not go into the Medicare Trust Fund
2. Sleight-of-hand financial projections that mixed ten years of benefits with six years of costs to make a massive new entitlement seem financially stable
3. Medicare “savings” that were counted twice under the bill — once to “save” Medicare and then again to finance a massive new entitlement unrelated to Medicare
4. A 2,000 page bill that likely was neither read nor understood by most of those who voted on it
5. Blatant pay-offs to individual senators to secure the votes necessary for passage
6. An all-day secret meeting at the White House with union representatives and others to refashion the final bill to their liking, revising the tax on “Cadillac” union health plans with the “Medicare contribution”
7. A suspect parliamentary procedure that rushed through a vote, on Christmas Eve, on a cobbled-together final bill, without hearings or time for public comment
8. Assertions that the bill had to be passed so people could find out what was in it
9. A refusal by the speaker of the House to treat Constitutional objections seriously (“Are you serious? Are you serious?”)
10. After passage of the legislation, a thinly veiled threat by the president of the United States to the Court’s legitimacy if it were to overturn the “duly constituted” law
Charles Krauthammer argued that Chief Justice Roberts’ opinion is explained by the fact that he “carries two identities” – a jurisprudential one (as a constitutional conservative) and an institutional one (as the chief justice “entrusted with the custodianship of the court’s legitimacy, reputation and stature”). But the chief justice swore an allegiance to the Constitution, not to the Court. If he decided to put the latter above the former, he issued an opinion that did damage to both. He promised to be an umpire and call them as he saw them, not to function as a player.