{"id":1571,"date":"2012-06-29T19:52:26","date_gmt":"2012-06-29T23:52:26","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1571"},"modified":"2015-10-02T15:23:09","modified_gmt":"2015-10-02T15:23:09","slug":"aca-individual-mandate","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/06\/29\/aca-individual-mandate\/","title":{"rendered":"ACA: Individual Mandate"},"content":{"rendered":"

By\u00a0Tom Watts
\n<\/em>Part 2 in a series on\u00a0National Federal of Independent Business v. Sebelius<\/em>:<\/p>\n

Roberts and the four liberals upheld the individual mandate as valid under the Taxing Clause. The majority noted, \u201cThe exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects.\u201d It pointed out that the \u201cpenalty\u201d (a) \u201cdoes not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code,\u201d (b) has an amount \u201cdetermined by such familiar factors as taxable income, number of dependents, and joint filing status,\u201d and (c) is described \u201cin the Internal Revenue Code and enforced by the IRS.\u201d
\n
\nThe majority, aware that it was describing the penalty as not a tax for the Anti-Injunction Act but a tax for the Taxing Clause, noted that this is not the first time that the Court has reached seemingly contradictory results construing these laws. In 1922, it decided that the Child Labor Tax was a tax under the Anti-Injunction Act in\u00a0Bailey v. George<\/em>\u00a0but not under the Taxing Clause in\u00a0Bailey v. Drexel Furniture<\/em>. The majority also ran through a line of cases showing that the function, rather than the label, of the collection determined whether it was allowable under the Taxing Clause, including the apparently slam-dunk quote from\u00a0United States v. Sotelo<\/em>, \u201cThat the funds due are referred to as a \u2018penalty\u2019 . . . does not alter their essential character as taxes.\u201d<\/p>\n

The dissent disagreed. The Act called the collection a \u201cpenalty,\u201d and the wording regarding purchasing coverage is phrased as mandatory (\u201crequirement,\u201d \u201cshall,\u201d etc.). The dissent, tellingly, said, \u201cThe issue is not whether Congress had the\u00a0power<\/em>\u00a0<\/em>to frame the minimum-coverage provision as a tax, but whether it\u00a0did<\/em>\u00a0<\/em>so.\u201d While the dissent also noted that it would read the penalty as a tax if it could, it concluded (in contrast to Roberts\u2019s opinion) that the penalty could not be construed this way.<\/p>\n

In essence, the disagreement between the majority and the dissent was whether to focus on the\u00a0effect<\/em>\u00a0of the Act or the\u00a0wording<\/em>\u00a0of the Act. This is not an easy issue to decide, but if the goal is to find any plausible interpretation that would render a statute constitutional, the majority seems to have done so.<\/p>\n

The other potential issue on the individual mandate was whether it was permissible under the Commerce Clause or the Necessary and Proper Clause. Since the case was disposed on other grounds, what the court said about the Commerce Clause appears to be dicta, but it is undeniably influential dicta. A majority consisting of Roberts and the four conservatives said that the Commerce Clause, even when combined with the Necessary and Proper Clause, does not give Congress the power to regulate inactivity, and that the decision not to purchase health insurance is inactivity. Congress can regulate commerce, but Congress cannot create commerce in order to regulate it. The four liberals argued that the \u201csubstantial effects\u201d doctrine covers this situation: the decision not to buy health insurance has substantial effects on interstate commerce. While concurring with the five Justices who thought that this was not covered by the Commerce Clause, Thomas wrote separately solely to criticize the \u201csubstantial effects\u201d doctrine as illicit.<\/p>\n

The four-Justice minority\u2019s approach seems more sensible here under existing precedent. There was considerable reference to\u00a0Wickard v. Filburn<\/em>, a 1942 case about wheat regulation, but the controversy was not really about that. The Court knows that if it took seriously the majority\u2019s argument here, it would have to re-examine\u00a0Gonzales v. Raich<\/em>, a 2004 case regarding intrastate marijuana regulation. Federal drug laws, justified under the Commerce Clause, regulate even homegrown marijuana that never leaves a person\u2019s house and is never involved in a commercial transaction.\u00a0Raich<\/em>\u00a0found this regulation constitutional. It is not a large step\u00a0from overturning the individual mandate back to overturning\u00a0Raich<\/em>.<\/p>\n

The majority attempted to distinguish\u00a0Raich<\/em>\u00a0on the grounds that previous cases\u00a0were about activity whereas this case is about inactivity. This distinction is highly artificial. The Constitution does not allow Congress to regulate \u201cactivity.\u201d It allows Congress to regulate \u201ccommerce.\u201d If\u00a0not<\/em>\u00a0<\/em>engaging in a commercial transaction regarding your own home-grown marijuana qualifies as commerce under the Constitution, then surely\u00a0not<\/em>engaging in a commercial transaction regarding health insurance is also \u201ccommerce.\u201d<\/p>\n

It would have been more logical and honest for the conservative wing to say that it wanted to overturn\u00a0Raich<\/em>;\u00a0Raich<\/em>\u00a0was not popular with conservatives when it was decided, although Scalia joined the opinion. Indeed,\u00a0Raich<\/em>\u00a0<\/em>manages to annoy conservatives who respect federalism, libertarians who value personal freedom, and liberals who prefer looser drug laws, all at the same time. Thus, overturning\u00a0Raich<\/em>\u00a0would be a bombshell, but perhaps not an unwelcome one. Nevertheless, this Court did not attempt to do so, perhaps in part because there was no need, since the case was decided on Taxing Clause grounds.<\/p>\n

In the last post, I will turn to severability and the Medicaid expansion.<\/p>\n","protected":false},"excerpt":{"rendered":"

By\u00a0Tom Watts Part 2 in a series on\u00a0National Federal of Independent Business v. Sebelius: Roberts and the four liberals upheld […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1571","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-pl","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1571","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1571"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1571\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1571"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1571"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1571"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}