I think I understand Ramesh Ponnuru’s original point better (in the article on which I commented and that he has clarified). He wants to know which of two readings of a statute is most justifiable, but he rules out looking only at the “‘functional’ effect of the legislation, because that examination will exclude exactly what we want to know.” If I understand him correctly, such a “functional” examination abstracts too quickly from the text of the statute (the first and best indication of its intended meaning), by moving immediately to a presumptive mode of analysis under a set of moral assumptions appropriate to, say, taxation rather than mandating of conduct.
All right. The trouble here is that the relevant provisions of the ACA, as written, bespeak a kind of split personality, and strongly suggest a kind of back-to-front drafting process, in which the legislative draftsmen (staffers, no doubt, sweating the details) wrote the mechanism of the individual mandate first, and then–for purposes of bolstering a claim of a commerce-power rationale and avoiding the tax-increase accusation–wrote a set of prefatory “findings” that later formed the basis of legal arguments.
The ACA, as Public Law 111-148, is published at 124 Stat. 119 (the abbreviation for the Statutes at Large), with portions of the bill identified as to be codified in various places in the United States Code and the Internal Revenue Code. Subtitle F, titled “Shared Responsibility for Health Care,” begins on page 242 (or page 124 of the 906-page statute), with Part I of the subtitle called “Individual Responsibility.” Here we find the “individual mandate,” under Section 1501, “Requirement to Maintain Minimum Essential Coverage.” Close to two pages in the printed statute, beginning this section, consists of congressional “findings” that are really arguments that individuals must be required to obtain health insurance because of the deleterious effects on interstate commerce if they don’t. Then the section arrives, on page 244, at the point where it instructs individuals in how to behave. From that point on–in language that Congress says should be inserted as a new “Chapter 48″ into the Internal Revenue Code of 1986–all the operative language is written in the conditional syntax of a tax law. (The “findings” will not appear in the Internal Revenue Code, to which taxpayers will refer in future.) There are references to a “requirement,” to be sure, and “there is hereby imposed a penalty” if one “fails to meet” it. Here is the stuff of which a “mandate” might seem to be made. But as the administration of the “penalty” is spun out in the succeeding paragraphs regarding what is now named the “shared responsibility payment,” we drift farther and farther from the shores of mandates and penalties, and find ourselves at sea in the details of the dreaded Form 1040.
Now, what is a judge to do with this mess? If we follow Justice Scalia as textualists, and disregard floor statements of congressmen to focus just on what Congress enacted, what are we to make of the “findings” at the beginning of this section? They do not say, in terms, that “Congress is enacting this legislation pursuant to its power over ‘commerce . . . among the states’ in Article I, section 8.” But the “findings” do clearly want us to think that Congress is saying something like this, and that is the argument that the government made (but did not exclusively rely upon) in its arguments in court.
Strip away the findings, however–which we textualists can do for the sake of argument, I think, because they are not operative statutory language at all but are only statements of congressional opinion (and dubious opinion, at that) regarding an arguable justification for the operative language. (In this respect they resemble self-serving floor statements.) Then what, if the operative language stands alone? It is, frankly, a muddle, with “requirement” and “penalty” mixed up with “payment” and “taxpayer” and “taxable year” and “household income” and so forth. And what leaps off the printed page of the statute is the way the “mandate” functions. Now we are back to the point of dispute between Ramesh and me. The lamppost is right over our heads, in the form of statutory language. And darned if the thing doesn’t look quite plausibly like an exercise of the taxing power.
I’m in a funny position here. The more my friends criticize Chief Justice Roberts, the more closely I look at what he did. And the more closely I look, the more I find it can be quite readily defended.