Obamacare ruling is judicial activism of the most pernicious sort

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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The Supreme Court’s validation of the Affordable Care Act’s (ACA) individual mandate will be celebrated as a product of appropriate judicial restraint. To the contrary, it is judicial activism of the most pernicious sort.

Writing for a five-justice majority, Chief Justice Roberts held that the requirement that individuals purchase health insurance or pay a penalty is within Congress’s constitutional power to tax. He reached this conclusion notwithstanding that President Obama and ACA supporters in Congress have repeatedly insisted that it is not a tax.

Why is this judicial activism? Because, by converting into a tax what Congress enacted as a regulation, the court has effectively legislated. It has made possible through judicial decision what Congress chose not to do, and probably could not have done, through the legislative process.

The rationale for the chief justice’s willingness to uphold the mandate as a tax is that the court should, if possible, defer to Congress by searching the Constitution for any plausible source of authority. There is ample precedent for this posture of judicial deference, but it is misguided in this case for reasons Justice Kennedy underscored during oral argument. The usual deference to Congress and presumption of constitutionality should give way, said Kennedy, to a “heavy burden of justification” on government “when you are changing the relation of the individual to the government.”

In other words, the courts should actively restrain, not actively facilitate, government infringement on liberty. Judicial deference is appropriate where Congress is acting pursuant to its enumerated powers and not infringing on constitutional liberties. But when activist government exceeds its enumerated powers and thereby threatens individual liberties, the courts must be vigilant in enforcing the Constitution. Otherwise the courts become party to activism and liberty is lost.

There can be little argument that the ACA, in Roberts’s words, “fundamentally chang[es] the relation between the citizen and the federal government.” The government’s position, wrote Roberts, would authorize “Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.”

Yet the chief justice abandons the vision of the Framers in concluding that Congress can accomplish this same change in the relation of the individual to government by reliance on its power to tax and spend. Few would disagree that Congress has the power to tax for the purpose of providing health care to the uninsured or as a means of encouraging individuals to purchase health insurance. But that is not what Congress did. In the name of deference to Congress, the Supreme Court has transformed what was enacted as a penalty under the Commerce Clause into a tax under the taxation power.

But if Congress had purported, at the time, to be imposing a tax on individuals who fail to purchase health insurance, the politics would have been very different. Indeed, it is unlikely the measure would have been approved as a tax. That is why the president insisted that it is not a tax and why Congress abandoned proposals to encourage purchase of insurance by imposition of a tax.

Taxes are not politically popular. Just ask the thousands of school districts that have failed to get voter approval for new taxes. Or consider why local governments have introduced all manner of charges and fees rather than seek tax increases. It is far easier to enact regulations than it is to impose taxes. The Supreme Court has effectively relieved Congress of the political burden of calling a spade a spade — calling a tax a tax.

The fact that the politics of assessing a new tax are different from the politics of imposing a new regulation is important to determining the constitutionality of a congressional act that purports to be one or the other. If Congress and the president, with an assist from the Supreme Court, can deceive the citizens about the nature of government actions, government by and for the people is impossible. Taxation under cover of regulation is taxation without representation.

The fact that five members of the court agree that the Commerce Clause does not give Congress authority to enact the individual mandate will provide some ammunition to members of Congress who oppose future changes in the relation between the individual and government. Perhaps a much-needed line has been drawn in the federalism sands.

But so long as a majority of the Supreme Court is prepared to place function over form — to conclude that if it could have been a tax it is a tax, the constitutional enumeration of congressional powers will remain an empty promise. Constitutions by their nature rely on a respect for formal definitions of individual rights and government powers. Regrettably, Chief Justice Roberts has embraced President Obama’s whatever-it-takes, do-the-right-thing, activist approach to constitutional interpretation.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.