Sebelius and the Election
Constitutionalists can seize a golden opportunity to revitalize our republican culture.

White House Chief of Staff Jack Lew


In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

The Supreme Court took Sebelius in order to consider two important federalism questions. In one issue, not relevant here, Obamacare opponents challenged provisions expanding state requirements in relation to Medicaid. What is relevant here is that they also challenged the “individual mandate,” codified in 26 U.S.C. § 5000A. This provision imposes what the statute calls a “requirement” (effective 2014) that every U.S. citizen purchase adequate health-care coverage; anyone who fails to do so will incur what the statute calls a “penalty” of $750 (subject to inflation adjustments and exemptions).

The Court upheld the individual mandate. In a concurring opinion written by Justice Ginsburg, the Court’s four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) made clear they would have preferred to uphold the mandate as an exercise of Congress’s powers to regulate interstate commerce. The Court’s conservative wing (in this case, Justices Scalia, Kennedy, Thomas, and Alito) dissented. They also treated the mandate as a commercial regulation, but they argued that the mandate exceeds the scope of Congress’s powers, both under the Commerce Clause and under the Necessary and Proper Clause.

Chief Justice Roberts delivered the judgment of the Court — and surprised many by upholding the mandate. Roberts (correctly) agreed with the dissenters that the mandate “cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’” After all, Congress does not really “regulate Commerce” as Article I requires when (in Roberts’s words) it “forces individuals into commerce precisely because they elected to refrain from commercial activity.” That reasoning should have led Roberts to find the mandate unconstitutional. Indeed, by some accounts, he did initially vote to hold the mandate unconstitutional. After the initial vote, however, he switched sides and wrote an opinion upholding the mandate as a constitutional exercise of Congress’s powers to tax.

To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.

Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.

On the one hand, these two errors make Sebelius a weak decision. The tax holding deserves to be overruled, and Roberts’s misconstruction of § 5000A should be made a poster example of how not to interpret an act of Congress.

Even so, constitutionalists must decide whether to make these legal issues their business for the immediate future, while the country ramps up for the 2012 election and an effort to repeal Obamacare in 2013. President Obama definitely wants to move on. Immediately after Sebelius was handed down, White House Chief of Staff Jack Lew said, “When the Supreme Court rules, we have a final answer.”

Republicans are not sure how to react. Many have assumed that it is time to turn the page on constitutional arguments and switch to policy-based arguments against the mandate and Obamacare generally. Others find it expedient to respect Chief Justice Roberts’s opinion, because it helps them hoist President Obama with his own petard. In 2009, Obama swore that the individual mandate was “absolutely not” a tax but a regulation. Now, Mitt Romney says that “the Supreme Court has the final word, and their final word is that Obamacare is a tax. So it’s a tax.” Citing Sebelius, Romney and other Republican leaders are now charging every congressman who voted for Obamacare with supporting a huge tax increase. Yet some members of Congress have not accepted the Sebelius decision as the “final word” on the individual mandate’s constitutionality. In a speech in favor of repealing Obamacare, California congressman Tom McClintock argued: “the Supreme Court is not the highest court in the land. That position is reserved to the rightful owners of the Constitution, the sovereign American people, through the votes they cast every two years.”