The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Thursday, June 28, 2012

The Decision to Uphold the Mandate as Tax Represents a Gestalt Shift in Constitutional Law

Today, it became clear that four of the Supreme Court's nine justices reject the academic consensus.  As Justice Kennedy states in his dissent joined by Scalia, Thomas, and Alito:

"In our view, the entire Act before us is invalid in its entirety."

The alternative gestalt is no longer an outlier, a theory endorsed by a few eccentric professors and one odd justice of the Supreme Court.  And because Justice Roberts believes that the mandate is not a valid exercise of the commerce clause (but is valid if interpreted as a tax), he has left open the possibility that there is a fifth justice who endorses the alternative gestalt.

We are only minutes into a long process of digesting the Health Care Decision.  But in my opinion, one thing is clear.  Things are now "up for grabs" in a way that no one anticipated when the saga of the constitutional challenge to the Affordable Care Act began.

via lsolum.typepad.com

So far Larry Solum's post is the best thing I've read on the ACA decision. I have just started reading the opinion, so this is just an initial reaction. And that is -- I can't tell if this is a political victory for Obama or for Romney. Probably for Obama, but there are a lot of on the other hands. Legally, as Solum suggests, and I would go further, this decision represents it seems to me a big step away from the New Deal gestalt. I'm not sure it isn't a long term victory for fans of limited government and the original frame. It is no small thing, not at all, that the mandate was struck down as an exercise of the commerce power. SCOTUS has stuck a marker in the ground, or more like built a cairn, marking the boundary of what Congress can do with the commerce power -- they can't regulate inactivity, which would have meant regulating anything. Congressional power to regulate is not plenary with minor exceptions. That is a very big deal, and not just because the opposite would have been a disaster. Randy Barnett among others deserves some kind of medal for this. Congress can in effect create an incentive to buy health insurance with a tax, but that tax can't be coercive -- if that's what the opinion actually says, that represents a major limit on Congress's power as well. I hope my reputation as an anti-Pollyanna will support my observation that while probably a political hit for the Republicans, it could well be that the actual law of this opinion is a step in the right direction in terms of restoring constitutional government. Don't expect CNN to see it that way. Anyway, it is far from clear it is cause for wailing and gnashing of teeth. Had Roberts joined the dissenters to make their view the majority, that would have been better, almost certainly. I will have to inform myself more on the argument that the mandate-fine should be taken as a tax to have an informed opinion on whether Roberts was correct as a matter of law, but it would not surprise me if he was correct. Interesting too that Kennedy dissented and actually read the dissent. Well, well -- interesting and encouraging to see the evolution of a pragmatic libertarian. I expect we will see more and more of this side of him coming out. There's nothing like the sting of losing something like this to wed you to your views. --TS

This is interesting but troubling. I guess I'm not in the right rumor chain because I had heard nothing about Chief Roberts being subjected to pressure to change his vote. If there is anything to this, it needs to come out.  Probably too much to expect of our press and it would be a tough story to get under the best of circumstances.  Implied is a threat by the WH to attack SCOTUS in some scary way if Roberts dares to vote down ACA.  That's the sort of thing that if some SCOTUS clerk knew about it, he would be duty-bound to leak, isn't it? But I have a hard time believing Roberts would cave to that sort of pressure; sadly I don't put it past the Chicago Boys (and Girls!) in the WH to try it. With the GOP controlling the House, I don't think a court packing plan is a plausible threat.  What else would do it? A threat just to campaign against SCOTUS in the upcoming election? Well, I'll troll around the RW underbelly of the Web (Free Republic here I come!) to see if I can find anything, but my default position is that this rumor sounds more like paranoia and conspiracy theory than truth. --TS

Underbelly reports somehow immigration status of Chief's adopted children threatened.  Gotta love that underbelly.  More, sort of.  Rush has some source re: Roberts; he 's wasn't under pressure in the Arizona case; it's something else.  I wonder what. --TS

Now that's a good point -- Is a tax bill that originated in the Senate enforceable? PPACA/Obamacare did originate in the Senate, correct? Hmmmmmm. --TS

https://rightcoast.typepad.com/rightcoast/2012/06/the-decision-to-uphold-the-mandate-as-tax-represents-a-gestalt-shift-in-constitutional-law.html

| Permalink

Comments

" Underbelly reports somehow immigration status of Chief's adopted children threatened. "

Surely a Chief Justice who went public with that would cost O the presidency?

Posted by: dearieme | Jun 28, 2012 11:20:10 AM

Yes -- an implausible rumor.

Posted by: Tom Smith | Jun 28, 2012 11:52:35 AM

I like the Tax Bill from Senate idea.

It reminds me that the passage of the bill was done against the rules of Congress too. If Congress in 2013 decides that it was done against the rules, is it void?

Posted by: Eric Rasmusen | Jun 28, 2012 8:46:23 PM