What’s behind Roberts’ surprising decision?

Joshua Hawley Former Roberts Clerk
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Say this for the lead opinion in the health care case the Supreme Court handed down Thursday: nobody saw that coming. Chief Justice Roberts joins with the court’s more liberal wing to uphold the Affordable Care Act … as a tax? The result is, to put it mildly, counterintuitive. Scribes have been busily dissecting the chief justice’s doctrinal analysis from the instant the opinion went viral, but here’s a different thought: doctrine may not be the key to this judgment. As Leo Strauss once made a point of telling his students, a text can be read in many different ways, and will mean different things depending on the lens with which one reads it. The text the chief justice published on Thursday may or may not make good sense read as constitutional doctrine. But read it as constitutional politics and things get more interesting.

Not politics in the way the Washington punditry means, of course. Roberts’ opinion has nothing to do with helping or hurting President Obama’s re-election chances this fall. The truth is, Supreme Court justices are rarely interested in that sort of thing. They see themselves as above partisan allegiances and the grand questions of law they decide as more important than run-of-the-mill partisan disputes.

No, I mean politics in the constitutional sense, concerning the Supreme Court’s role in the Constitution’s structure. The danger this case held for the court from the beginning was the possibility — indeed, high likelihood — that it would draw the institution into an acute confrontation with the executive branch in the middle of an election year, and at the same time force the justices into the thick of a policy debate where they have no genuine expertise. The chief justice’s opinion can be fruitfully read as a sort of maneuver, an effort to avoid these evils while simultaneously blocking the federal government’s attempted power grab.

Consider: Roberts begins with the Commerce Clause question, where the Obama administration placed nearly all the weight of its argument. According to the administration, the Commerce Clause permits Congress to regulate any behavior (or non-behavior) that has some incidental effect on commerce. Roberts rejects that contention root and branch. Indeed, for the first time in the Supreme Court’s modern Commerce Clause jurisprudence, he announces a clear and decisive limit to what the federal government may do with its commerce authority: it may regulate only actual economic activity, and then only if the activity has a substantial effect on interstate commerce. It may not regulate a person’s choice not to enter the stream of commerce in the first place.

Had this been the sum and substance of the opinion, liberals would have bewailed it as the constitutional apocalypse they feared. But of course it is not the end; Roberts goes on to the administration’s secondary argument. Yet by placing the Commerce Clause discussion where he does, by holding unequivocally that the individual mandate cannot survive on commerce grounds, Roberts makes the Commerce Clause holding necessary to the final judgment. That means the limits on the commerce authority he announced (and with which the four dissenting justices agree) will control in future cases.

This is a significant, even major, development, but one that is largely concealed by the opinion’s ultimate judgment. Yet even that judgment turns out to be rather less a victory for the government than it first seems.

The key move in Roberts’ opinion is his conclusion that the individual mandate is actually a sort of tax, and therefore constitutional by virtue of Congress’ unquestioned power to tax. That allows the mandate to stand, yes — but effectively makes the mandate sui generis, and thereby denies the government a new source of regulatory power.

This is why: Roberts does not say that the government may now regulate anything it likes by calling the regulation a tax. He says this mandate can be read as a tax in these circumstances — that is, in light of the fact that it would be unconstitutional on any other ground and the court is supposed to avoid finding statutes unconstitutional if it can — and on these grounds: because it is administered by the IRS through the tax code and operates in many respects like a normal tax. Only if future regulatory schemes can meet all these criteria would they be valid under the taxing power. Yet Roberts does not give a single example of any such scheme — and we know for a fact, because they have told us repeatedly, that members of Congress would never have voted for this regulation if they had believed it was a tax.

Making the mandate a tax has at least one other effect. It makes repeal easier. Now that the mandate has been deemed taxation, it can likely be jettisoned through use of the reconciliation process — meaning the Senate will need to muster only a bare majority for repeal, not 60 votes.

By converting the mandate to a tax, then, Roberts limits the ability of the government to do the same sort of thing in the future and underlines the political unpopularity of the law, all while allowing the law to stand. And because it does stand, the court is spared a nasty turn at center stage in the November elections.

Whether the chief justice’s stratagem actually works is a different question. Suffice it to say, I have my doubts. The text and structure of the law seem overwhelmingly to indicate that the mandate is a legal requirement — namely, to buy insurance — enforced with a fine. The mandate does not qualify as a tax under the Supreme Court’s settled rules for identifying taxes, and both the text of the law and those who wrote it said it was not.

But then, Roberts’ aim may be less to apply tax doctrine than to shift the law’s fate from the court to the voters. At the beginning of his opinion, the chief justice pointedly notes that the court “do[es] not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.” He repeats this sentiment at the opinion’s close, but with a subtle variation. “[T]he Court does not express any opinion on the wisdom of the Affordable Care Act,” he writes, for “[u]nder the Constitution, that judgment is reserved to the people.” Could it be that the chief justice is asking the people to render a verdict on the leaders who wrote the law in the first place? In all events, they should take him up on it.

Joshua Hawley is a former law clerk to Chief Justice Roberts and an associate professor of law at the University of Missouri.