The Saving Construction Sinks the Supreme Court
The Consequences for Judicial Review in the Precedent of NFIB v. Sebelius
The deciding opinion written by Chief Justice Roberts in National Federation of Independent Businesses v. Sebelius betrays the essential function of the Supreme Court to check the ambition of its co-equal branches. Under scrutiny, Roberts’s principles of “every reasonable construction” and a “fairly possible” interpretation are highly questionable, as the historical precedents do not seem to fit his contemporary use of them. Furthermore, neither of these principles are tenable as pillars of Supreme Court jurisprudence. Both are contrary to the purpose of the Supreme Court in the constitutional system of American government. Roberts’s opinion subjects Americans to a law they did not consent to and a law their representatives did not write. Ultimately, the saving construction put forth by Justice Roberts degrades the federal system of limited government and checks and balances as it undermines the function of the Supreme Court.
Introduction
The Supreme Court has a function to fulfill in the federal system of government. Article III, Section 1 of the United States Constitution establishes that Court and imbues it with “the judicial power.” Article III, Section 2 extends that power to a number of areas, including “the Laws of the United States.” In The Federalist Papers, we find an explanation of what the system requires of the Court. Namely, the Court is to check the ambitions of the other branches of government and to preserve the Constitution and the sovereignty of the people from governmental (in particular, executive and legislative) usurpations.[1] The opinion rendered by Chief Justice John Roberts in the case of National Federation of Independent Businesses (NFIB) v. Sebelius fails that function and the precedent of his opinion betrays the purpose of the institution.
Justice Roberts writes in his opinion that “every reasonable construction” of a law must be considered when determining its constitutionality. If a construction is “fairly possible,” then the law must be upheld as constitutional. This doctrine of the saving construction is doubtful on its face, as it privileges an ambiguous law and a deceptive government over the will and sovereignty of the people. Furthermore, the specific precedents he relies on for this method of review do not support his conclusion. On the contrary, those very precedents he cites lead toward the opposite result: a determination of the individual mandate as a penalty, not a tax, and thereby unconstitutional.
Roberts’s judicial philosophy of the saving construction does not hold under scrutiny, nor does the elevation of governmental authority over the sovereignty of the people accord with the purpose of the Supreme Court in the federal system of American government. The consent of the governed is a paramount principle in a democratic republic. The proper functioning of the three branches to check and balance each other are necessary to preserve the Constitution and its federal balance of powers. The Supreme Court, if it continues on the course of offering saving constructions supported by a faulty use of precedent, will fail to fulfill its function in that system.
The Federalist on the Judiciary
The United States Constitution, in order to be simple, is somewhat complicated. The simplicity is that the people are the sovereign: not the legislature, not the executive, not the judiciary. In truth, not even the Constitution is sovereign, for it is amendable according to the people’s will. This simple principle, the sovereignty of the people, requires a somewhat complicated system of government. We often call it federalism. What is to prevent the government, or one branch of it, from usurping the people’s sovereignty? Americans are taught those famous terms “the separation of powers” and “checks and balances” for a reason. The separated branches are interwoven enough so as to combat the over-reaching of any individual actor or institution. At least, that was the plan. Institutional loyalty and the protection of institutional prerogatives seem to be weakening across the branches in favor of party and ideological correspondence, thereby dissolving the strictures of and protections within the federal system of government (Fontana & Huq, 2018).
Nonetheless, the Supreme Court has an integral function in the system of checks and balances. Even in a republican form of government, the legislature may make “encroachments and oppressions” on the people (Hamilton, 2001, 421). Should the legislature and the executive dispute the virtue of a law, who will decide the case? Should the two momentarily agree upon an act of encroachment and oppression, who might stand against their combination? This is the purpose of the Supreme Court: to issue its judgment in cases brought against the government itself to ensure the sovereignty of the people.
Let us first remember the foundational premise of constitutional federalism: the powers of the government are limited. In the case of the legislature, they are even enumerated. Article I, Section VIII of the United States Constitution includes enumerated powers specifically to curtail what Congress may legitimately pass into law. The legislature is not sovereign, its powers not determined by the body itself. It is not the British Parliament; it is the United States Congress. As The Federalist #78 wrote: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid” (Hamilton, 2001, 422). The people are sovereign, the Constitution is their grant of power and authority to the government, and its limitations are binding upon those bodies. This is the American system of government. Ensuring its proper operation is the perpetual challenge of politics. The Supreme Court certainly has its role to play in this system.
“The complete independence of the courts is peculiarly essential in a limited Constitution,” Hamilton (2001, 422) wrote in The Federalist #78. Limiting the powers of government requires mechanisms, and the Supreme Court is such a one. Through legal challenge, the people have recourse to uphold their sovereign rights and oblige government bodies to remain within their constraints. Without an avenue of legal redress, “all the reservations of particular rights or privileges would amount to nothing.” “Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty must be to declare all acts contrary to the manifest tenor of the Constitution void” (Hamilton, 2001, 422). Hamilton’s essay in The Federalist #78 portrays a clear role for the role the Supreme Court to play in preserving the rights and privileges of the citizenry against the government itself. Chief Justice Roberts in NFIB v. Sebelius fails to secure this purpose and the precedent his opinion sets will undermine it.
The sovereignty of the people must always be paramount. This is the fundamental basis of the American union. The Constitution which organizes the government “must be regarded by the judges[,] as a fundamental law” (Hamilton, 2001, 423). In a simple, majoritarian conception of democracy, the acts of the legislature are legitimate and binding by virtue of being enacted. The majority is its own sovereignty. However, the American union is not a simple, majoritarian democracy, for such a constitutional design tends toward the usurpation and exploitation of powers which ultimately destroy the liberty and rights of the individual and the minority. To preserve the sovereignty of the whole people, the Constitution limits the powers of the governing bodies, while nonetheless providing the avenue of adding to them: the amendment procedure. Yet, “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act” (Hamilton, 2001, 425).
Humanity being what is it, the people must set safeguards of their liberty against the “arts of designing men” (Hamilton, 2001, 425). Demagogues are wont to use momentary passions and crises to usher through a craven, corrupt legislature those measures which violate the spirit and letter of the Constitution. When a president acts in league with such a legislature, what safeguard have the whole people but the judiciary branch? Of course, were democracy itself the cure, then the Constitution and its federal system would be superfluous. Simply yield all power to the legislature and the thing is fixed. Some do prefer absolute legislative supremacy, calling it “judicial restraint” for the Supreme Court to show “deference to the choices of Congress […], state legislatures, or the voters.” (Walsh, 2015b, 54).[2] If this is to be the role of the Supreme Court, why have it at all? The Court becomes superfluous and unnecessary. Additionally, the amendment process is rendered more obscure and archaic as well. On the other hand, a people who wish to remain in union and in liberty must delimit the powers of their government and oblige it to remain within them. To this end, the Supreme Court is given the power to review and make null and void those laws which exceed the authority granted to the legislature, among other tasks set for it. The opinion of Chief Justice Roberts in NFIB v. Sebelius “has spawned confusion about the Federalism Principle” and is an abdication of the Court’s institutional purpose and constitutional function (Pushaw, 2013, 1995).
This introductory understanding is the foundation to the subsequent analysis and assessment of Chief Justice John Roberts’s opinion in the NFIB v. Sebelius case. Understanding that the Constitution sets limits to the powers of Congress is a prerequisite. The dispute in that case between the left-liberal wing of the court and the right-conservative wing with regard to the constitutionality of the individual mandate (as exemplified in Justice Ginsberg’s opinion and that of Justices Scalia, Kennedy, Thomas, and Alito) is a matter separate and distinct from the grave concern regarding the authoritative opinion written by Roberts alone (Somin, 2014). The argument that Roberts saved the Court from issuing a “partisan, political” opinion is somewhat ridiculous, as both factions of the Court issued “political” opinions that are nonetheless grounded in long-standing judicial philosophies (Mashaw, 2013).
In truth, the disagreement between Ginsberg and Scalia et al. can be traced back to a disagreement between Alexander Hamilton and Thomas Jefferson themselves. Their contentions regarding the constitutionality of the National Bank — whether Congress had the authority to create a corporation in the first place — are a matter distinct from Roberts’s opinion (Hamilton, 2001, 613-646 and Jefferson, 1984, 416-421). In these United States, we have always disputed the interpretation of the enumerated powers and to what extent legislative measures are “necessary and proper” or in accordance with “the general welfare.” Though the founding-era National Bank bill was passed and signed into law, the issue of Constitutional interpretation was not resolved thereby. To an extent, NFIB v. Sebelius is replay of that issue under new circumstances and the Court found itself tied at four to four. John Roberts’s opinion, distinct from the recognizable, historically-rooted opinions of Justices Ginsberg and Scalia et al., carried the day all on its own. The question is whether that opinion has any legitimacy to it. The worrisome answer is that it has none. The opinion reflects “lawlessness” and violates “fundamental norms of judicial review” (Magarian, 2013, 16).
Every Reasonable Construction
Chief Justice John Roberts has introduced a strange new god into the pantheon of judicial interpretation: “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality” (NFIB v. Sebelius 567 U.S. 519 (2012), p. 521). The usher of this new divinity is that a “fairly possible” interpretation will be acceptable in place of the most natural one, if the most natural one is plainly unconstitutional (NFIB, 563). For these principles, Roberts (NFIB, 562) referenced an old saying of Justice Story in 1830 and another of Justice Holmes in 1927, both of whom supported deference to Congress rather than the people in matters of Constitutionality. More specifically, Roberts relied on two obscure cases: Hooper v. California 155 U.S. 648 (1895) and Crowell v. Benson 285 U.S. 22 (1932). One first wonders why the Court must resort to every measure to prevent itself from rendering a law null and void. Instead of approaching the task of judicial review with favoritism of the law, why not favor the Constitution, if the Court is to show favor to anything? Roberts’s judicial philosophy revolves around the “saving construction” of laws in deference to Congressional authority, though why he has adopted this philosophy remains uncertain (Adler, 2013). Second, the public might wonder how many constructions of an individual law are possible. To which construction of the law did the people consent? In critical summation, how can a law be legitimate when Congress does not know what it has written, the executive does not know what it is enforcing, the Court is not sure what it is constructing it to be, and the people simply do not know at all, except that they will be made to pay their monies in tribute to authority?
In Hooper v. California, the Court ruled that Californian law regulating the sale of insurance policies within its jurisdiction is a lawful exercise of its state power not in conflict with Congress’s authority to regulate commerce among the states. Moreover, the purchasing of insurance is not classified as an act of commerce. Such purchases do not fall under the Interstate Commerce Clause as an activity that can be regulated by Congress, as was claimed by Hooper against the state of California. The Court sided with California and could not have been clearer why: “The business of insurance is not commerce” (Hooper v. California 155 U.S. 655). This case was not a matter of interpreting the meaning of an ambiguously-worded law, but mainly determining whether the law infringed on Congress’s powers under the Interstate Commerce Clause. It is odd that Roberts cited this precedent as the case is scarcely a matter of interpretation, and much less a matter of reinterpretation, and doubly-odd in that the case sides with the state of California over an appeal to Congressional prerogative.
Furthermore, the majority opinion in Hooper provides something of a warning against exactly what Roberts did in NFIB v. Sebelius. Rather than support his decision, the decision undermines it. In Hooper, the Court (155 U.S. 658) wrote, “Public policy forbids a construction of the law which leads to such a result unless logically unavoidable.” The “result” to which the court refers would be an application of the law that allows for corporations to engage in “subterfuge in order to evade obligations properly imposed on it.” In context, this refers to the state of California regulating insurance companies, policies, and sales as it sees fit for the good of Californians. The Court acknowledged California’s authority to do this in Hooper against the argument that a state’s doing so would entail a violation of Congress’s authority to regulate interstate commerce. That is the case distilled to its essentials. With regard to NFIB v. Sebelius, we can draw the opposite conclusion that Justice Roberts did from this precedent, and more reasonably. The Court acted under a strict understanding of what constitutes commerce (not the sale of insurance policies that affect business relations in one state only, despite the product being carried across state lines) and proffered a simple understanding of the law.
The oddest thing of all is the quotation Roberts pulls from Hooper v. California (155 U.S. 657). He imbues it with such authority as to make it a veritable judicial philosophy all its own, but the line is seemingly taken out of context. “[E]very reasonable construction must be resorted to in order to save a statute from unconstitutionality” is a doubtful doctrine in any number of ways. But within the decision, the preceding sentence is crucial to understanding what the Court meant: “The fallacy here is ingenuous, but easily exposed.” The paragraph which ends with Roberts’s pulled quotation is a summary of the Plaintiff in error’s line of argumentation, which the court rejects as fallacy. To conclude the paragraph with “every reasonable construction” is mainly to stress that the appellant has no legitimate argument whatsoever. All reasonable constructions were considered and rejected because the plain, natural meaning of the text is readily ascertainable.
Roberts’s object, to afford every possible interpretation of a statute a fair hearing, is an entire judicial philosophy that requires more than a single quotation from single, aged case, and one in which the “reasonable construction” was rejected as a fallacy. Roberts has a recognized tendency toward statutory interpretation instead of constitutional interpretation, at least compared to the Rehnquist Court (Shortell, 2012). Here, he appears to have elevated the former into the latter. There is little ground for taking from Hooper Roberts’s judicial philosophy of the saving construction. Rather, the precedent of the decision is that the attempt to impose an unlikely, implausible interpretation on a law should be rejected with all due explanation.
Roberts includes a second case to buttress the judicial philosophy of the saving construction. In Crowell v. Benson (285 U.S. 22, 62), the Court set forth the “cardinal principle that the court will first ascertain whether a construction of the Act is fairly possible” when doubts of its constitutionality are raised. In that case, the Court relied on Congress’s intent to understand the fairly possible construction of the Act which made relief and benefits speedily available to workers under certain terms and conditions. The Crowell decision declared, “Specific provisions of the Longshoremen’s Act make clear that it was the aim of Congress to expedite the relief afforded” (285 U.S. 71). The Court does not find it is fairly possible to understand the law as being slow to provide relief given Congress’s apparent intent to the contrary. If nothing else, we learn from this case that Congressional intent matters when interpreting what a law means. The case established a precedent that law should be constructed, if fairly possible, to do what Congress intended it to do and not something to the contrary. Roberts does not adhere to this precedent, but rather ignores the Congressional intent of the individual mandate within the greater health care law. He fails to use the precedent correctly.
In attempting to understand how a penalty could be transmuted into a tax (Pushaw, 2013, 2024-2030), one does not find succor in the precedents cited by the Chief Justice in his opinion. One is merely confounded (Sandefur, 2013). The questions returns: Why should the Court err on the side of Congress? Why shouldn’t the Court side with the Constitution or the people? A law which may have multiple meanings, one most natural and others “fairly possible,” does not sound like a legitimate law. Such an act of Congress seems to be doubtful on its face. Where there is doubt, why not side with the people instead of the government?[3] That is, after all, the function of the Court as an institution in the federal system: not to bolster the legislature by reshaping its confused acts into a fairly possible mold, but to adhere to the Constitution to maintain the sovereignty of the people.
The Universe of Fairly Possible Constructions
The Patient Protection & Affordable Care Act (PPACA) sets a penalty for an individual’s failure to obtain a qualified health insurance plan. Roberts (NFIB, 562) agrees this is “the most straightforward reading of the mandate.” Not only that, it is reflected in Congressional intent and policy. Rejecting this straightforward understanding of the law and its passage, Roberts reconstructs the statute to make it constitutional by other means. Roberts seemed unconcerned that the government defended the law as one of two mutually incompatible things: it is either a penalty or tax, whichever the Court will believe it is. The government was unconcerned with what the law was and only concerned with securing its constitutionality. It is understandable that Congress and the executive would seek to maximize their power. Such ambition is to be expected. For the Supreme Court to accede to those ambitions, rather than to check them, is a devastating failure of federalism.
The crux of the case revolves around the “individual mandate” within the law (26 U.S.C. § 5000A), also called “the shared responsibility payment.” If the law is to make sense, this feature amounts to a penalty assessed on those who can afford to purchase insurance but choose not to. It makes little sense to penalize those people who cannot afford to purchase the insurance. Roberts (NFIB, 564) states, “It is of course true that the Act describes the payment as a ‘penalty’ and not a ‘tax.’” But in the Chief Justice’s opinion, the natural reading of “penalty” can be replaced with “tax” for the purpose of constitutionality without much effect on the administration of the law. Since it can be this or that, and this is unconstitutional but that is not, why not read it as that? Such is the Chief Justice’s reasoning in its most succinct form. At best his opinion is breezily carefree; at worst, it is strikingly obtuse.
The first thing to astound the American public in this case is that the federal government offered two mutually-inconsistent interpretations of the law. Lawyers for the government confidently asserted the congressional authority to mandate the purchase of health insurance and fine persons for non-compliance under the Interstate Commerce Clause, with the Necessary & Proper Clause in tow (U.S. Supreme Court, 2014). Many laws have been defended and upheld under the authority of those constitutional provisions. But the government recognized the shared responsibility payment amounts to compelling commerce, which is new ground for Congress. Though confident the fine for failure to maintain insurance was a legitimate regulation of commerce, the government asked the Court to also consider the law as putting a tax on failure to purchase insurance, if the first position did not hold. This is strange, at least to a citizen’s ear. How can the government think its law is two mutually-exclusive things: a tax, a penalty? In Justice Scalia’s words, something that is both a tax and also a penalty for constitutional purposes is a “creature never hitherto seen in the United States Reports” (NFIB, 661). The individual mandate seems to be Kierkegaard’s cat in Schrodinger’s box; it either/or is this/that.
One would think the government would know under what authority it had acted. One would think the law is either a fine for failure to comply with a mandate or a tax on a certain type of behavior/action/condition. But the executive branch did not, at least when at trial. The government responsible for defending the constitutionality of the law did not know under what authority Congress had acted or what the law demanded of the citizenry, except to pay monies by hook or by crook. The government was unconcerned with this ambivalence, but was absolutely concerned to maintain its power to do whatever it was doing.
Is it fairly possible to construe the penalty as a tax? Justice Scalia’s opinion answers with the question with a resounding no, though Roberts’s opinion offers the opposite take. But this is something of a superficial question. A question that strikes at the heart of federalism is whether the “fairly possible” standard is a legitimate method of determining the constitutionality of Congressional law. Instead of considering the interpretation of the law as an exercise in logical possibility, why not consider the law in the context of the constitutional system of government? After all, intelligent people can find all sorts of “fairly possible” interpretations of things (Park, 2015).[4] The Court is not an organization dedicated to logical analysis for the purpose of logically analyzing all the fairly possible meanings of statutes, but an institution in the broader system of our federal government. It has a function in that system of government, and its activities ought to aim at that function. Recalling the function, Roberts’s opinion is damnable, for his interpretation is fair to the government and unfair to the people. It presumes a sovereignty of the state over the people. It results in tyranny, for a law was passed to which the people did not consent. Indeed, it seems neither Congress nor the President assented to the law that Roberts interpreted it to be.
Ascertaining Intentions
As of May 2019, the government remains mistaken about what it is exacting and demanding from the citizenry regarding the shared-responsibility tax-penalty provision. The website HealthCare.gov conforms to the government’s discernable intention rather than what Justice Roberts determined the law to be. HealthCare.gov (2019) informs the citizenry: “If you can afford health insurance but choose not to buy it, you may pay a fee called the individual Shared Responsibility Payment. (The fee is sometimes called the ‘penalty,’ ‘fine,’ or ‘individual mandate.’).” The executive branch is not enacting the law according to the Supreme Court’s understanding of it. Evidence suggests that Congress did not pass the law with the Court’s understanding of it; likely, such a law would not have garnered the necessary support for passage. Perhaps the law was written tortuously to disguise itself (Roy, 2014), but there is no evidence Congress intended to pass a tax increase. On the contrary, persuasive evidence supports the position that Congress intended the mandate to be a penalty. By according his fairly possible interpretation to the law, Justice Roberts ignored Congressional intent and thereby sabotaged the democratic process.[5] His opinion legitimized a law that was not passed. This is a serious violation of the consent of the governed; indeed, it violated the consent of the government as well.
In September of 2009, President Obama affirmed and reaffirmed that the shared responsibility payment was not a tax (Good, 2012). In an interview with reporter George Stephanopolous, President Obama was asked pointedly, “Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?” The President responded confidently, “No. That’s not true, George. The- for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” The President knew the bill he signed into law did not raise people’s taxes, but punished (fined or penalized) those who failed to act according to a standard of socially responsible behavior: the purchase of health insurance. He stated this clearly: “What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase.” The President contended that the talk of the mandate as a tax was a political charge levied by his opponents, who “say everything is a tax increase.”
Soon after NFIB v. Sebelius was decided in 2012, Governor Deval Patrick, speaking to reporters on behalf of President Obama, reiterated that the penalty was a measure to deal with “freeloaders” and not a tax on the American people (Tau, 2012). The transcript of the 2009 interview concludes with definite clarity. Stephanopolous asks, “But you reject that it’s a tax increase?” President Obama answers: “I absolutely reject that notion” (Good, 2012). The interview is valuable for its perspective into the intent of the law as stated by the chief executive. These comments match a description of the individual mandate included on the website WhiteHouse.gov (2009), which likened the fine/penalty to a speeding ticket or auto insurance. WhiteHouse.gov (2009) stated clearly: “What President Obama is proposing is not a tax, but a requirement to comply with the law.” WhiteHouse.gov (2009) was quite declarative: “What we’re talking about is a penalty for the few people who will refuse to buy health insurance- even though they can afford it- and expect the rest of us to pick up the tab for their care.” The intention of the executive branch was clear, but Chief Justice Roberts never seems to have weighed the evidence.
In rejecting the interpretation of the mandate as a tax, President Obama expressed the opinion of the Congressional majority which passed the bill. The Speaker of the House of Representatives, Nancy Pelosi, affirmed in 2012 that contrary to what the Chief Justice has ruled, the individual mandate was not a tax. “‘No, it’s a penalty. No, it’s a penalty,’ Pelosi insisted” (Jones, 2012). Speaker Pelosi’s comments include the substantive reasons for her insistence. “It’s a penalty that comes under the tax code for the 1 percent, perhaps, of the population who may decide that they’re going to be free riders.” Reiterating the intent of the Speaker of House about the individual mandate, when the interviewer suggested it was a new tax, Pelosi responded, “‘No, no, no. It’s not a tax on the American people.’” The Speaker affirmed elsewhere that the purpose of the mandate was to extract money from free riders, not apply a tax to citizens in general (Brooks, 2012).
Nor did Senate Majority Leader Harry Reid intend to tax Americans with the PPACA. From the early stages of the bill, Senator Reid favored measure which “would require most Americans to obtain health insurance, and […] would impose less stringent penalties on people who did not comply” (Pear and Herszenhorn, 2009). When the issue of taxes does arise, the measures include an income tax surcharge, a tax on “Cadillac plans,” or a Medicare payroll taxes, while the mandate remains “a fine” in the language of the House and Senate bills prior to their merger (Silverleib, 2009). As with the House and the Presidency, the Senate does not appear to have considered the individual mandate a tax when it crafted and passed the PPACA.
Interpreting the individual mandate as a tax is not fairly possible given the statements of those elected officials who passed it. The standard set in Crowell v. Benson, cited by Roberts as the precedent for a “fairly possible” interpretation, relied on the avowed intention of Congress in passing the law. In Crowell, the Supreme Court could readily ascertain that Congress intended the law to deliver quick relief to recipients specified in the Act. With regard to the PPACA, Chief Justice Roberts ignored or overlooked the intentions of the elected officials. If the intent of Congress and the President were taken into account, it is not possible to construe the mandate as a tax. They explicitly campaigned in public for the individual mandate/shared responsibility payment to be considered a penalty for “freeloaders” and not a tax on the people. The public intentions of the law render it unconstitutional under the precedent of set Crowell. Roberts’s citation works directly against his decision.[6]
The curious decision is rendered confounding by the government itself. The Chief Justice considered the mandate to be a tax at the request of the government, which offered two incompatible defenses of the legislation: it was a regulatory mandate under the Interstate Commerce Clause or it was a general tax under a non-specified taxing power. This confusion on the part of the government casts doubt on whether Congressional intent can be discerned at all so as to yield a “fairly possible” interpretation of the law. Justice Roberts decided to ignore the government’s contradiction and to consider each defense separately to reach his conclusion. At the least, this is a false application of the precedent set by Crowell. If no intent is discernable, then the Court must remain with the natural meaning of the law.
If the government engaged in deceit to garner public support for the bill by calling it a penalty on irresponsible free-riders when in law they knew it would be a tax that might fall on a variety of citizens, how should this affect the Supreme Court’s method of review? This possibility arises given that the government suggested to the Court the law was in fact a tax if not a penalty. The politics in this are utterly perplexing. At the very least, the Court ought to have taken the frequent and overt description of the law as “not a tax” to understand the intent behind the law. Doing so, it is not fairly possible to interpret the mandate as a tax.
The implications for democratic legitimacy run deep in this case. If the government writes a tortuous, confusing piece of legislation, but openly campaigns that the law is definitely not a certain thing (for example, a tax), is it legitimate for the Court to determine that it is indeed that certain thing? Doing so, the Court is establishing that a law passed on the basis of deception is binding while simultaneously rewriting that very law- a law to which the people did not consent, nor the legislature, at least overtly. Even the president is in on the deception, for the president signed the law after declaring it one thing only to discover it was another thing. What a mess! What an undemocratic, illegitimate debacle! Yet, this is the result of Roberts’s opinion. Congress passed a law it did not. The people are bound by a law they did not consent to. The Court can interpret a law so that it means something other than what the government intended it to mean. But that is far beyond the “fairly possible” principle Roberts clings to in reaching his decision.
Conclusion
Both scholarly and public opinion should consider Roberts’s decision to be illegitimate and contrary to the purpose of the Supreme Court in the federal system of government. The precedents he cites do not accord with his use of them. Hooper v. California declares most overtly that regulations on the purchase of insurance policies are not a type of commerce that falls under the Interstate Commerce Clause; therefore, the individual mandate in the PPACA is not rightly considered as constitutional under the Interstate Commerce Clause. This seems to render invalid Congress’s authority to pass the entire law, but Roberts seemed not to have noticed.[7] Disregarding that complication, Roberts only sought from that case a statement that the individual mandate must be given “every reasonable construction.” Roberts then offers Crowell v. Benson as precedent for giving a “fairly possible” interpretation to the ambiguous law, only the law is not ambiguous. It clearly states the individual mandate is a penalty for failure to possess adequate insurance. The Crowell precedent includes the use of Congressional intent to determine a fairly possible interpretation, a method of understanding which also sinks the PPACA’s individual mandate, as both Congress and President Obama assured the country the mandate was not a tax. Roberts ignored that part of the precedent and ignored all of the evidence as to the intent of the law. The only evidence he considered was a last-ditch appeal by the government to consider the mandate as a tax in its decision, if that would save it from unconstitutionality. This appeal undermines Roberts’s decision either way. If he considers the government’s request, then the intent of the law is indecipherable. How can it be a penalty when it was passed but then be transmogrified into a tax when under judicial review? If he rejects the government’s secondary appeal, then the mandate is an unconstitutional penalty, as argued by Roberts’s opinion along with Justices Scalia, Kennedy, Thomas, and Alito. Misusing precedents and evidence to reach the opinion that the mandate is a tax is simply illegitimate.
This decision sets a distinctly anti-constitutional and undemocratic precedent. What remains of the Constitution’s limited powers afforded to government if it can pass taxes under the guise of penalties? What becomes of the power of the Judiciary to check and balance the legislature and executive if it will first seek every available means of finding their activities to be constitutional? What becomes of democracy when Congress can overtly describe a law as one thing only to have it turned into something else by judicial review? Most troubling, are the people still sovereign in a meaningful sense of that term: consenting to the laws which govern them?
The Supreme Court has a function in the American system of government. It has the power to review laws and render null and void those that exceed the limits of the Constitution and those that violate the rights of the citizenry. The Supreme Court has issued recent decisions protecting the right of speech, the right to bear arms, and the right to marry.[8] Individual rights seem to be secure, or at least the avenue for securing them through the judicial process remains open. But the Court has shown little capacity to limit the powers of government to its enumerations. Congress may do as it wills and the Court suffers what it must, creating post hoc justifications for the usurpation of power instead of striking down the ambitions of an overweening legislature. Of course, the Constitution provides a mechanism for adding powers to Congress. The people may amend the document when most of them are in accord. It is no small thing to change the rules of a system of government. The process of amendment should not be left to a bare majority of justices or a temporary legislature. The Court has an obligation to adhere to these rules of the game. Its function in the system is to check the other branches of government exactly when they are exceeding the powers the people have granted to them- even if they do so at the majority’s request. Fulfilling that function is critical to the effective operation of government, the maintenance of the Constitution itself, and the preservation of the sovereignty of the people. In NFIB v. Sebelius, Justice Roberts has issued a stunning failure of federalism.
References
Adler, J. (2013). Judicial minimalism, the mandate, and Mr. Roberts. In N. Persily, G. E. Metzger & T. W. Morrison (Eds.), The health care case: The Supreme Court’s decision and its implications. (pp. 171-185). New York: Oxford University Press.
Belkin, J. (2013). The Court affirms the social contract. In N. Persily, G. E. Metzger & T. W.
Morrison (Eds.), The health care case: The Supreme Court’s decision and its
implications. (pp. 171-185). New York: Oxford University Press.
Brooks, J. (2012). Pelosi on health care mandate: Goodbye to the free riders; Interview with
Scott Shafer. KQED News. (2012, June 28). Retrieved from
https://www.kqed.org/news/69111/interview-nancy-pelosi-on-health-care-decision#interview
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Endnotes
[1] Belkin (2013, 11) argues contrariwise, that the essential function of the Court is “to legitimate state building by the political branches.” This view of constitutional federalism is entirely at odds with The Federalist, my argument, and a republican form of government.
[2] Professor Jeffrey Rosen is quoted in Walsh (2015b).
[3] Metzger and Morrison (2013, 125) argue the opposite case. They acknowledge ambiguity in the law, but contend that “The Court should not conclude that Congress refused to exercise its tax power, or any other head of legislative authority, unless Congress expressly stated that refusal in the statute at issue.” This is certainly debatable. One way or another, the Court must determine the authority under which Congress acts. Relying on the precedent of Crowell, intention becomes the deciding factor to questions of uncertainty, a factor which Roberts gets entirely wrong his opinion.
[4] For a pop-culture example, a certain online video presented the case that the purported villain in the film The Karate Kid (1985) is actually the hero and the hero is the villain, if you re-examine the movie with an open mind. This fairly possible interpretation of the film took on a life of its own, even becoming a national story reported by CBS News. My point is only this: in a land of intelligent, diverse, and open-minded people, how many interpretations of things are not fairly possible?
[5] It is odd that retired Justice John Paul Stevens praised Roberts for focusing on the intent of Congress to reach his opinion (J. P. 2015). There is no evidence Roberts did so and the retired Justice does not explain his brief comment.
[6] King v Burwell is a case where Congressional intent was more readily discernable and crucially important to understanding a confusing provision in the PPACA (Rosenbaum 2015 and Walsh 2015a). The six-member majority ruled that Congress did not intend for individuals purchasing health insurance through a federal exchange to lose out on subsidies made available to those who purchased through a state exchange. King v Burwell more correctly applies the precedent of Crowell whereas Roberts’s opinion in NFIB entirely misapplies it.
[7] In relying on Hooper, Chief Justice Roberts has determined that Congress has no authority to regulate the purchase of insurance policies under the Commerce Clause. So, under what authority did Congress pass the PPACA, given its nearly innumerable regulations on health insurance policies? Did the Chief Justice thereby rule the entire law unconstitutional as he maneuvered to save the individual mandate?
[8] Citizens United v. Federal Election Commission 558 U.S. 310 (2010); District of Columbia v. Heller 554 U.S. 570 (2008); Obergefell v. Hodges 135 S. Ct. 2584 (2015).