Roberts' Health-Care Ruling Is Based on a Strategic Inconsistency

Article excerpt

By now anyone paying attention knows that Supreme Court Chief Justice John Roberts' ruling determined the Affordable Care Act to be constitutional because the penalty that enforces the individual mandate is a tax. Less well known is that Roberts' ruling also declared the opposite: The penalty that enforces the individual mandate is not a tax.

Roberts' reasoning is inconsistent and strategic. It enables him to do two things he otherwise could not do in the same ruling: declare the ACA constitutional and limit congressional power under the commerce clause. Here's how his strategic inconsistency works.

Roberts first deals with the tax question in section II of his ruling, available here [PDF]. He notes that the amicus brief commissioned by the court argues that because the penalty "functions like a tax" and is "assessed and collected in the same manner as taxes," it is a tax. He then states that "the government disagrees" because (a) the ACA directs the Treasury Secretary "to use the same 'methodology and proce-dures' to collect the penalty that he uses to collect taxes," and (b) the means of collection does not determine whether the penalty is a tax. Roberts concludes:

"we must accept the Government's in-terpretation: [the ACA] instructs the Secretary that his authority to assess taxes includes the authority to assess penalties, but it does not equate assessable penalties to taxes for other purposes."

Here Roberts determines the penalty is not a tax. This enables the court to rule on the case. If the penalty were a tax, the Anti- Injunction Act would forbid judicial action until after the taxes were paid -- after someone had suffered an injury for which they could seek redress -- and thus not until 2014.

The about-face

Later, in section III-C, Roberts performs an about-face. He argues that the use of the term "penalty" is inaccurate; because the payment in question has numerous characteristics of a tax -- including, ironically given the argument cited above, that it "is collected solely by the IRS through the normal means of taxation" -- it must be designated a tax. Roberts concludes the ACA "is therefore constitutional, because it can reasonably be read as a tax."

The reason for Roberts' double-definition is clear. He defines the payment as a penalty so the court can rule on the case. He defines the payment as a tax so he can find the ACA a constitutional application of the powers of taxation rather than an unconstitutional exaction of a penalty.

The conservative dissenting justices certainly call attention to Roberts' inconsistency. They deride his position because it presumes that "the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries ver-bal wizardry too far, deep into the forbidden land of the sophists. …