Yesterday, we cautioned conservatives not to panic over Chief Justice John Roberts’ decision to side with the Supreme Court’s liberal bloc to uphold President Obama’s national health care law. Yet we also noted that it was a serious disappointment, and we would be remiss if we did not explain why it was a poor ruling.
There are two ways for conservatives to view this decision: by its policy outcome, and by its legal outcome. From a small-government policy perspective, the decision is an unmitigated disaster. Some have argued that Republicans can now run against the mandate as a new tax imposed by Obama on the middle class. This is true, but it is difficult to get too excited about that knowing that four dissenting justices — including Anthony Kennedy — were prepared to strike down the entire health care law.
To be clear, just because striking down the whole law would be the preferred policy outcome for conservatives, it doesn’t mean, by itself, that the case was wrongly decided. Roberts can’t strike down laws just because conservatives think they’re bad. He can only strike down ones that aren’t consistent with the Constitution. This brings us to the decision’s legal implications.
Though Roberts rightly ruled that the mandate was not a valid exercise of Congress’ power under the Commerce Clause, or separately justified by the Necessary and Proper clause, he erred by upholding the law on taxing power grounds.
As Justices Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito clearly stated in their dissent, “The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.” In the health care law, the penalty was intentionally not described as a tax, did not appear in the revenue section of the statute, and was not meant to raise revenue but to enforce the mandate. Roberts had to effectively rewrite the law from the bench to make it a tax.
Under Roberts’ argument, the mandate is kosher because it’s merely a tax on those who do not purchase insurance. His defenders on the Right argue that it isn’t really setting a precedent — Congress has always had this power. As Roberts himself put it, “Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking.”
The problem with Roberts’ example of cigarette taxes is that it’s a case in which government is imposing a tax to discourage an affirmative act. But the mandate is an example of slapping on a penalty as a means of compelling action. Roberts recognized the distinction between activity and inactivity when it came to the Commerce Clause argument, but he didn’t grapple with the difference between so-called “sin” taxes and a mandate penalty.
Conservatives were encouraged by Roberts’ Commerce Clause ruling. While that was a victory for limited-government principles, conservatives would have gotten that anyway had Roberts joined with Scalia, Alito, Kennedy and Thomas.
By upholding the law, Roberts was at least able get liberal buy-in on a ruling against Obamacare’s Medicaid expansion provision, and that is no doubt significant. But on a net basis, it wasn’t worth the price of admission.
