The Good, the Bad, and the Ugly in the Court Decision

There will be lots of analysis and spin today on the Supreme Court’s decision. But here is all you need to know. The Court got the Commerce Clause part right, but so what? They were never going to find the mandate within the power of the Commerce Clause. The Court, on the other hand, disregarded the position of the government and read the law to be a tax, and therefore within the power of the Constitution.

The Good:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals 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 Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

The Bad:

In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order tosave a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

The Ugly:

In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287, 294. Pp. 33–35.  Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.

Understand that the decision to characterize the law as a tax (even though the Justice Department made the opposite argument) is not entirely outlandish. Courts have an obligation to presume statutes are constitutional. Roberts particularly hails from that jurisprudential pedigree, as opposed to someone like Justice Thomas or Scalia.

There are conservatives like Roberts obsessed with reining in courts, largely from their Roe v Wade shell shock and other 1970s opinions. Conservatives like Scalia and Thomas are more interested in enforcing constitutional limits to protect liberty.

When you hear Republican politicians warn about “legislating from the bench,” they are using rhetoric from two decades ago when courts advanced a leftist agenda in the absence of legislative activity. The term today is as archaic as parachute pants and AMC Gremlins. These days, legislatures are passing leftist legislation that exercises unconstitutional power. In that circumstance, it is up to the courts to defend the Constitution. Today, the Court flinched from that obligation, in part because of decades of conservatives repeating the empty and now obsolete admonition against “legislating from the bench.”