The Lopsided Giant

By Christopher Robertson

Professor Elhauge‘s provocative little book, Obamacare on Trial, has many of us rethinking and revisiting the NFIB v. Sebelius decision, and I had a chance to attend the nice book talk featuring Professor Elhauge and several interlocutors last week.

Chief Justice Roberts’ opinion in the case is not prominently textualist (since contemporaneous dictionary definitions of “regulate” are unhelpful to him, as Elhauge shows) nor historicist (since the founders themselves imposed healthcare insurance purchase mandates, as Elhauge also shows).  Instead, Chief Justice Roberts repeatedly relies on a slippery slope style of argument (or a reductio ad absurdum), not unlike those I heard from Fox TV commentators and friends on Facebook in the months prior to the decision.  Below the fold, I suggest that this form of argument is incoherent given the larger holding of the case.

For examples:

  • “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.”  (Slip Op., at 21.)
  • “Indeed, the Government’s logic would justify a mandatory purchase to solve almost any problem.”  (Slip Op., at 22.)
  • “Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”   (Slip Op.,  23.)
  • “That is not the country the Framers of our Constitution envisioned.”  (Slip Op., at 23.)
  • “Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”  (Slip Op., at 23-24.)

Okay, so the Feds cannot force you to buy broccoli to solve the nutrition problems, nor force you to buy GM cars to solve the auto crisis.  Fine.  Except that twelve pages later, Chief Justice Roberts starts telling his readers that Congress can do all of that and more — as long as it uses a different power.

By upholding the individual mandate as a tax, Chief Justice Roberts concedes that, “it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new.”  (Slip Op., at 36.)   Likewise, although Justice Roberts said that the individual mandate was not a “regulation” of commerce (because “regulation” cannot create the thing it is trying to regulate), he now concedes that “[e]very tax is in some measure regulatory.”  (Slip Op., at 37.)

Is this opinion facially incoherent?  If Justice Roberts had provided a textual or historical analysis of the Commerce Clause, or one that was otherwise somehow more surgical, he may have avoided this problem.  But once he tells us that he is deciding the case because he is worried about “fundamentally changing the relation between the citizen and the Federal Government” (Slip Op., at 23-24.), I see no room for formalism about this Congressional power versus that one.

Still, as my friend Abby Moncrieff reminded me, the tax power does have different contours, even if it is somehow immune to reductio ad absurdum or slippery slope limits.  You can be thrown in jail for not paying the penalty, which is slightly different than being thrown in jail for not getting health insurance.  Indeed, Chief Justice Roberts suggests that the mandate is acceptable as a tax because it may be porous, allowing some noncompliance.  (See Slip Op., at 36.)  But, as Chief Justice Roberts concedes around note 8, for the richest Americans, the Affordable Care Act allows the size of the tax penalty to grow to become as large as the cost of insurance.  At least for those taxpayers, the mandate will then be perfect.  Either buy the product, or pay the Government the full price thereof as a tax.

Even for some poorer Americans who would not pay such a large penalty, it will be irrational to pay the tax (and get no insurance) rather than pay the premium (and get insurance).  Since the insurance does have some value, it will be rational to buy it as long as the tax penalty is greater than the cost of the premium minus the actuarial value of the insurance, and that provision now enjoys the Supreme Court’s blessing.  Thus, it appears that Chief Justice Roberts has affirmed a mandate-as-tax even if the statute makes noncompliance irrational for some Americans.

Thus, just as he feared under the Commerce Clause, Chief Justice Roberts’ “logic [under the tax clause] would justify a mandatory purchase to solve almost any problem.” (Slip Op., at 22.)  Either buy a GM car yourself, or pay the Government the full price thereof as a tax.  If the product has any value at all, any  person is thereby coerced into buying it, on pain of irrationality.

In my view, this incoherence was unavoidably at the core of the mandate challengers’ position all along.  If anything “fundamentally changed the relation between the citizen and the Federal Government” (Slip Op., at 23-24.), it was the creation of Medicare, an individual health insurance mandate with a single payer, conducted through the taxation power.  Thus, when the Chief Justice was in his tender years, the tax power had already slipped down the treacherous slope.  (And, in retrospect we seem quite happy down here.  Even the challengers thought that Medicare was untouchable.)  Plausibly, that fact of history has made the taxation power immune to the same sorts of slippery slope arguments that the Chief Justice says now cripple the Commerce Clause power.

Thus my title.  When I teach these cases, I sketch for my students a picture of the Federal Government as a lopsided giant Uncle Sam — with one arm of nearly limitless strength and the other shackled and atrophied.

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