Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate shows that the Supreme Court takes constitutional limits on federal power seriously – but not seriously enough. As a result, Congress now has the power to impose a mandate to do almost anything, so long as it is structured as so-called “tax.”
That ruling both misreads the Constitution and gives Congress a dangerous new power.
Although he cast the deciding vote to uphold the mandate, Chief Justice John Roberts actually rejected the federal government’s main argument for the law: that the mandate is authorized by the Commerce Clause, which gives Congress the power to regulate interstate commerce.
As Roberts pointed out, the mandate “does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” If, he continues, Congress can “regulate individuals precisely because they are doing nothing,” it could impose pretty much any mandate of any kind. It could require people to purchase broccoli, cars, movie tickets or pretty much any other product.
Roberts also rejected the federal government’s argument that the mandate is constitutional because health insurance is a special case. For example, the government claimed that health care is unique because it is a product nearly everyone uses at some point in their lives. In reality, however, pretty much any other mandate could be justified the same way. The government relies on shifting the focus from health insurance to health care, claiming that the former is just one way to obtain the latter. But pretty much any product government might force you to buy is part of some larger market that is difficult to avoid.For example, not everyone eats broccoli. But everyone does participate in the market for food, of which the broccoli market is just one part.
Why then did Roberts vote to uphold the law? Because he concluded it is a “tax” authorized by Congress’ power to impose taxes under the Tax Clause. In doing so, he endorsed an argument rejected by every lower court ruling that addressed it. He also rejected the views of President Obama and numerous congressional Democrats, who repeatedly assured us that the mandate was not a tax. As the President put it in 2009, “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.”
The President was right and Chief Justice Roberts is wrong.
Roberts argues that the mandate is a tax because it imposes only a monetary fine on those who fail to comply, the fine does not apply to people too poor to pay income taxes, and that fine is collected by the IRS. As he admits, calling this a “tax” is not the “most natural interpretation” of the mandate. The law refers to the fine as a “penalty,” not a tax. And the Supreme Court has repeatedly distinguished between taxes and penalties, defining the latter as “an exaction imposed by statute as punishment for an unlawful act” or omission.
The health insurance mandate imposes a fine as punishment for the unlawful refusal to purchase government-mandated health insurance. The chief justice writes that this is not a penalty because “the mandate is not a legal command to buy insurance,” but merely a requirement that you pay additional money to the IRS if you refuse to comply. Failure to purchase health insurance, is therefore, not really “unlawful.” This distinction is hardly persuasive. Is speeding not really unlawful if the penalty for it is a fine payable through the IRS?
Pretty much any other mandate could be magically converted into a tax by the same sleight of hand – so long as the penalty for violating it is a fine similar to the one that enforces the individual mandate. The danger here is not just theoretical. Numerous interest groups could potentially lobby Congress to enact a law requiring people to buy their products, just as the health insurance industry did.
In rejecting the federal government’s argument that the mandate is authorized by the Commerce Clause, the chief justice emphasized that the Constitution denies Congress the power to “bring countless decisions an individual could potentially make within the scope of federal regulation and … empower Congress to make those decisions for him.” Yet he has allowed the government to claim that same power under the Tax Clause.
Fortunately, today’s decision is not the end of the debate over the scope of federal power. The Supreme Court remains closely divided over these issues, and there is clearly no consensus on the question of how far Congress can go in controlling our lives. Future cases could limit the harmful effects of today’s ruling or even someday reverse it entirely.
Somin is associate professor of law at George Mason University Law School. He wrote an amicus brief urging the Supreme Court to strike down the law, on behalf of the Washington Legal Foundation and a group of constitutional law scholars.
