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Roberts Didn't Expand Government's Taxing Power

Roberts Didn't Expand Government's Taxing Power

By Sean Trende - July 5, 2012

I've been a little surprised by the continued outrage on the right and chest-thumping on the left regarding the Supreme Court's health care decision. The right got everything it wanted in the ruling, save for the actual outcome. The left got legal reasoning that, up until the minute the decision was handed down, it had maintained would mark the end of government as we know it. Sad to say, but the main takeaway is that most court-watchers, left and right, care a lot about the outcome and very little about the law.

Some on the right are latching onto one bit of doctrine as cause for unhappiness in the case. In particular, they claim that John Roberts expanded the government’s taxing power substantially, such that it now provides an endless capacity that Congress lacked with the commerce clause.

This is nonsense. There are two reasons why. First, all nine justices, and even some of the lawyers arguing against the health care law, agreed that the individual mandate could be enforced under the power to tax. Here’s the joint dissent: “Of course in many cases, what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action, or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. . . . The issue [here] is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so."

In other words, the fight among the justices was not an epic struggle regarding the extent of the taxation power. It was a rather mundane fight over statutory interpretation, and whether the mandate, as written, could be construed as a tax or not.

Some conservatives have objected that the mandate couldn’t have passed Congress if it had been expressly framed as a tax. I find this odd given that the health care law already contains about $500 billion in new taxes, including highly unpopular ones such as the taxes on medical equipment and certain health insurance plans. And given how the entire battle played out, with some Democrats looking like certain “no” votes until the last minute, and several House Democrats committing career suicide by switching their votes from “no” on the House bill to “yes” on the Senate bill, my sense is that this law was going to be passed one way or the other no matter what it contained.

Regardless, it isn’t the court’s job to hoist Congress with its own petard; it is to interpret the Constitution and to try to uphold acts of Congress, if possible (again, the dissent and Roberts agree on this). Reasonable minds can certainly disagree about whether the chief justice went too far in trying to save this particular statute or whether the dissent was excessively formalistic about its definition of a tax. The way Roberts created something of a “Schroedinger’s tax,” existing for purposes of Article I but not existing for purposes of the anti-injunction act, is especially curious (at least on its face). But there wasn’t any disagreement about whether the court could have passed this as a tax. It was simply about whether it had done so.

Second, that Congress would have the power to pass the mandate pursuant to its power to tax makes eminent sense. John Yoo wrote in last week’s Wall Street Journal: “Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty, then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.”

This is odd, given that Congress already does provide a tax penalty for not buying electric cars. Consider the following hypothetical scenarios:

(a) Two people make $100,000. There is a 25 percent flat tax imposed, with one exception: a $7,500 credit is allowed for buying a Chevy Volt. A buys a Volt, B does not. A therefore pays $17,500 in taxes, while B pays $25,000 in taxes.

(b) Two people make $100,000. There is a 17.5 percent flat tax imposed, with one exception: a $7,500 surtax is imposed for not buying a Chevy Volt. A buys a volt, B does not. A therefore pays $17,500 in taxes, while B pays $25,000 in taxes.

I honestly may be missing something here, but I can’t see how option (a) -- an oversimplified statement of present law -- is acceptable, but (b) offends either the conscience or the Constitution. The simple fact is that almost all of us pay higher taxes each year than we otherwise would on the basis of things we forgo: whether it is not buying an electric car, not installing energy-efficient windows in our house, or not having that third kid. There’s no new ground being broken here.

At the end of the day, this is the score on the Affordable Care Act decision: (1) The law survives; (2) the tax power is the same as it was a week ago; (3) the commerce clause is less broad than liberals insisted; (4) the necessary and proper clause is constricted; and (5) the spending power is constricted (recall that the lower courts passed on the Medicaid challenge because the Supreme Court had never found an improper coercion in the past 75 years).

If Republicans lose in 2012 and the law starts being implemented, this will seem like cold comfort, and if President Obama replaces Justice Scalia or Kennedy, it will all be for naught. Which is why I’ve previously characterized this as a “gambit” on Roberts’ part.

But if Republicans win in 2012, this will be a clean sweep for conservatives, with very few apparent downsides. At the end of the day, the voters will have the final say on whether Roberts’ gamble pays off. 

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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