I have read and reread Ramesh Ponnuru’s article “Chief Justice Robert and the Morality of Law,” and it seems to me that he gives us as much reason to defend Chief Justice Roberts’ opinion in the NFIB case as to criticize it. Ramesh begins by reminding us that “[l]aw has an inescapable moral component.” True enough. Next he says, “[l]aws almost always have normative force.” I would go further, and strike the “almost.” But the question is one of obligation. What obligation does the law impose on the citizen? That is the normative question. Ramesh is quite right that the criminal law, which condemns certain acts as simply not to be done, imposes an obligation not to do them. The fact that it imposes penalties for not doing them should not lead us to the conclusion that in fact we are being given perfectly licit and legitimately available alternatives–obey or pay the penalty. To use Ramesh’s example, we would be mad to say that the law against murder says to a man, “you have two choices: let your enemy live, or pay with your life in prison if you wish to kill him.” No, it says “do not murder,” and then proceeds to exact a penalty for disobedience of the obligation. Or, to take another example, I am told by smart legal scholars in contract law that no one thinks any longer of contracts as having normative obligations. Instead, they are understood to have the tort for breach of contract understood as part of their terms, so that parties enter into contracts not on the understanding that they shall not break them, but on the understanding that there is a price for breach in the background, payable in damages to be determined by a court if need be. This, I think, is not progress in legal thinking.
So far we are in agreement. But then Ramesh admits that there are laws that present citizens with equally legitimate alternatives, and that tax law provides the paradigmatic example. Drink beer? Gotta pay the beer tax if you buy it. Don’t want to pay the beer tax? Don’t buy beer. Third alternative: find a way to buy black market beer that is untaxed. Ah, now you’ve collided with a norm, for the law rules out this third option.
So with the mandate under the ACA, at least according to Chief Justice Roberts. You are a payer of income tax. Got health insurance? Fine, go to the next step. Don’t have health insurance? Okay, pay this tax. The alternatives are equally available, and, as Chief Justice Roberts noted, the government predicts that some several million people are expected to be subject to this penalty, to which no moral opprobrium attaches if they pay it. It is the third option–of failing to obtain insurance, and failing to pay the penalty–where a normative obligation enters the picture. And this is an “option” the law condemns, with the force of criminal law if it comes to that, as tax evasion.
There are ways to critique Chief Justice Roberts’ opinion in NFIB, but I frankly don’t see exactly what purchase this one has. Ramesh admits that taxes can be viewed under a different moral analysis than other kinds of laws. The issue regarding the Court’s ruling is, which reading of the ACA makes more sense? Is it a true mandate with a penalty, so that we can perceive a normative obligation to buy health insurance, bearing some moral gravity? Or is it a leveraged incentive under the tax code, where a true normative obligation only enters the picture when one chooses a forbidden third option of neither buying insurance nor paying the (take your pick) penalty/tax?
As I said a week ago, Republicans had quite a time of it in 2009 and 2010, describing the ACA both ways during the legislative debate on the law. Democrats went rushing toward one way of describing it, both in the statute and in their rhetoric: not a tax alternative, but a mandate with penalty. Perhaps the Court was obliged to see it the same way. Roberts chose the other way. I would not say that he missed the moral dimension of the law, but that he chose a reading of the statute that brings its moral dimension into one reasonable category rather than the other.