Over at Hoover, Richard Epstein has an unsurprisingly worthwhile take on the Obamacare decision. Epstein uses Roberts famed description of judges as “umpires” as his central image. Here he focuses on the substantial harm Roberts misses when he construes the mandate as a tax, not a penalty, for constitutional purposes:
The Chief Justice looks more like a batter seeking to execute a suicide squeeze than an umpire calling balls and strikes. At this point, labels no longer matter. What matters is whether Congress imposed a tax or imposed a penalty. In answering that question, the Chief Justice ignores the wide range of institutional safeguards that are required before taxes could be imposed.
The Obama administration went out of its way to say that it did not plan to impose any taxes, in part because of its no-new taxes pledge, and in part to get a favorable route for the Act through the Congress. That route did not lie through the House of Representatives, where all tax measures must originate. These procedural steps are part of the structural Constitution. Umpires usually try to use consistent definitions because otherwise they are well aware that there is a risk in equivocation: The political actor, meanwhile, can first pick this and then that definition to suit his convenience.
As Peter Suderman reminds us at Reason, the danger of this political head-fake was not lost on Judge Roger Vinson when he ruled the mandate a tax:
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.
Not only did the Democrats rely on this equivocation to pass the bill in the first place, but they are doubling down on the doublespeak. Witness White House spokesman Jay Carney telling reporters today that the mandate is definitively not a tax, but a penalty (and therefore, according to a 5-4 majority of the Supreme Court, unconstitutional?). This even though the administration’s Solicitor General argued — quite poorly — that the mandate is a tax, an argument which alone saved the Affordable Care Act by the skin of its teeth.
The law’s defenders, with a massive assist from the Chief Justice, have established a standard by which a law can with full constitutional protection say one thing and mean another. I suggest naming this the Ex faslo quodlibet standard in future Supreme Court jurisprudence. That’s the Latin phrase (“from falseness, anything follows”) that describes a peculiar feature of classical logic: Once you’ve established two inconsistent premises (e.g., the mandate both is and is not a tax), you can derive literally any conclusion you like.
UPDATE: I forgot about this, which I liked a whole lot, from the dissent. It touches on the perversion of the constitutional structure discussed by both Vinson and Epstein:
For all these reasons, to say that the Individual Man- date merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl- ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Repre- sentatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to thepeople, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Impos- ing a tax through judicial legislation inverts the constitu- tional scheme, and places the power to tax in the branch of government least accountable to the citizenry.