It seems to me that many commentators are missing the distinction between a penalty and a tax in the same way that Chief Justice Roberts did. The error, grandiloquent as this sounds as I write it, derives from a fundamental misunderstanding of the nature of law.
Law has an inescapable moral component. Laws almost always have normative force. Let us leave aside the cases of laws that purport to command us to do something that is immoral, or to forbid us to do something morally obligatory. Those are unjust laws that are “no laws at all” in the sense of binding the conscience. Far more often, laws make that which was morally optional either morally mandatory or morally forbidden. There is no intrinsic moral reason that driving on the left side of the street should be impermissible. Lawmakers can nonetheless have good reasons for forbidding it, and once they have done so, their having done so becomes a good reason for us not to do it.
To my mind, what made the individual mandate so obnoxious was that it carried the law’s moral authority to a field where it was unnecessary and inappropriate. The government was purporting to bind our conscience in a new way: We were to be obligated to purchase a product, health insurance, as part of our general obligation to obey the law.
It is possible to conceive an alternative view of the law that ignores its moral dimension. In this alternative view, all law does is announce the consequences that will attend a citizen if he chooses certain courses of action. Thus the law does not forbid murder, in the sense of providing a moral reason — in addition to the intrinsic wrongness of murder — not to murder. It merely says that if you choose to murder and get caught, you will do so much jail time. Strictly speaking, on this view, you are not disobeying the law or breaking it in committing murder. You’re just choosing to open door number two.
The difference between a mandate and a tax is precisely the difference between, on one hand, a command that the citizen is morally obligated to obey and, on the other hand, a set of options open to the citizen that the government has merely structured through its announcement of its likely responses to his choice. With a mandate that incurs a penalty, the government is telling citizens that they must buy insurance. To fail to buy insurance is to break the law. In the case of a tax, conscientious citizens would have no such moral obligation. They would behave fully lawfully in not buying insurance, but they would have to pay extra to exercise that option. Similarly, they act perfectly lawfully in buying beer but have to pay sin taxes.
The key question in Chief Justice Roberts’s analysis was which of these things the government was trying to do in the Obamacare law. He chose to answer the question in precisely the wrong way: a way that guaranteed he would reach the wrong result.
He adopted a “functional” view of the law. So he asked several sub-questions, such as: Did the government allow that citizens would have to be shown to have knowingly flouted the law before having to pay the fee Obamacare sets forth? This “scienter” requirement is typically found when the government makes actions unlawful, but is often absent when it imposes a tax. Other sub-questions concerned the severity of the consequence the government would impose for not getting insurance, and whether the provision would be administered by the IRS. Roberts concluded that many of the features of the legal provision in question were typical of a tax, and therefore ruled that it was reasonable to construe it as though it were one.
This analysis entirely ignored the chief feature of the law that made it a mandate: its creation of a moral obligation on the part of citizens. It had to ignore that feature; it is incapable of detecting it. A “functional” analysis will look purely at a law’s consequences, and not at all at whether it is designed to have certain effects in people’s minds. It will adopt in practice the amoral view of law sketched above.
Once Roberts decided on a method that overlooked the health-care law’s normative dimension, of course he concluded that it was reasonable to read it as having none. Roberts’s mistake must have been an easy one to make, since, so far as I can tell, very few people have put their finger on it. His analysis did not malfunction so much as it attempted to do something that, by its nature, it could not.
— Ramesh Ponnuru is a senior editor of National Review.