Bench Memos

Chief Justice Roberts’s Puzzling Opinion

Count me as one of the many Supreme Court watchers who are still puzzled by the Court’s health-care decision. Certainly, some parts of the chief justice’s opinion — those that recognize the importance of limited government — leave room for praise. Sadly, what he gave with one hand he took away with the other, producing an opinion that is marred by significant problems. One of the most significant problems is the disconnect between his Commerce Clause discussion and his taxing-power discussion.

With respect to the Commerce Clause, the chief recognized the importance of maintaining a principle that would limit Congress’s power. As he put it, “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product,” because there must be something to regulate in the first place (p. 18). Note how expansive Chief Justice Roberts thought this power to compel would be: 

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. Every day individuals do not do an infinite number of things…Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. (emphasis added) (Roberts, p. 20-21).

Echoing Justice Kennedy’s language from oral arguments, he explained that “accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government [emphasis added].” He also cited Federalist 48, for the notion that Congress could “everywhere . . . [extend] the sphere of its activity and . . . [draw] all power into its impetuous vortex.

To recap, upholding the mandate under the Commerce Clause would open up (1) a “new and potentially vast domain”; (2) reaching an “infinite number of things,” including “countless decisions an individual could make”; (3) “fundamentally changing the relation between the citizen and the Federal Government; and (4) creating an “impetuous vortex” of Congressional power. The chief even initially seemed to acknowledge the same concerns under a taxing-power mandate. 

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something. [emphasis added] (Roberts, p. 41).

But inexplicably, Chief Justice Roberts managed to dismiss the previously acknowledged problems through relabeling. He did so through three main arguments, none of which holds up in light of his original concerns. 

1) He explains that the Constitution allows a “capitation” tax — a generally applicable “head tax” that applies regardless of someone’s actions or inaction. If we take the chief justice at his word, this citation could not possibly justify taxing inaction. His initial concern related to the government’s ability to reach “what we do not do,” not its ability to tax someone regardless of anything they do or don’t do.

2) He also references tax credits, subsidies for behavior implemented through the tax code. This is also irrelevant, at least if you accept his Commerce Clause language, as I do. No one contests the ability to regulate action that affects interstate commerce; the debate is over regulating inaction. In the same way, employing a tax credit to incentivize behavior is analogized to using the Commerce Clause to regulate action; irrelevant for evaluating if a tax can punish inaction. One can accept that the tax code can reward behavior, as under a credit, without accepting that the code can punish behavior, as under a tax. 

3) He articulates already existing checks on the taxing power that constrain the federal government’s ability to regulate “what we do not do.” But, if the question in this case was only the extent of the federal government’s power to regulate inactivity, why wouldn’t the chief have only struck down the mandate (under the Commerce Clause) if the “penalty” attached to the mandate was too harsh?  Indeed, the chief’s discussion of the Commerce Clause expresses concern about regulating the category of inactivity, not the extent of that regulation. His sleight of hand pretends that his categorical objections did not exist, and it was merely a question of ensuring that the regulation of inactivity was not too expansive. Otherwise Chief Justice Roberts could have found that the mandate was constitutional under the Commerce Clause, provided that the accompanying penalty was not too harsh.


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