Twisting a statute is better than twisting the Constitution

Today’s decision is a dark cloud with some silver linings.

Beginning with the first silver lining, a majority of the Court rejected the position that Congress could utilize its authority to regulate interstate commerce to compel individuals whose defining characteristic is that they have not engaged in commerce to purchase a product.  To uphold such a claim of authority would have pushed the Court’s Commerce Clause interpretation into heretofore unknown territory.  In rejecting the government’s claim, both the Roberts decision and Scalia’s — which together garnered five votes — acknowledged that Wickard v. Filburn marked the outer reaches of federal power under the Commerce Clause, and that the mandate exceeded those limits.  While this does not create anything new in the way of law, it maintains some limitation on Congress’s commerce power.  Had the Court ruled otherwise, it would have been difficult to conceive of any limitation on Congress’s power.  Indeed, it is for this reason that the government struggled so mightily in answering questions concerning limiting principles — ultimately throwing up their hands to say that health care is “unique” — a principle that inevitably would hold until the next “unique” issue arose.

The next positive result is that there were seven votes recognizing some limitation on Congress’s spending power.  This was a position that few observers thought would garner more than a single vote (which may help explain the relative lack of commentary on this point in the immediate aftermath of the decision).  While the contours of this limitation are murky, it is clear that the coercion limitation on Congress’s spending powers is alive and well.
The dark cloud in the decision is the majority’s handling of the actual statute before the Court.  Treating the penalty for failing to purchase insurance as a tax literally flips the statutory scheme on its head, to make it so that the cart (penalty—er, I mean tax) is the driving constitutional justification for the horse (mandate).  Indeed, it is difficult to use that tax to constitutionally authorize the mandate, when the mandate applies to individuals who are not subject to the tax.  Roberts concludes that “[o]ur precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.”  In other words: good enough for government work.

Such reasoning flies in the face of the guiding principle in Printz v. United States, [521 U.S. 898 (1997)] in which the Court struck down provisions of a law where Congress employed unconstitutional means to an end that it could have constitutionally accomplished in another manner.  Yes, under well-established precedent, Congress could have devised a tax to support universal health care.  But they didn’t, and the Court engaged in feats of statutory contortion to make it look remotely like it was so.

While it is better that the Court contorted a statute rather than the Constitution, the question is whether in doing so they have created a road map for Congress to craft future penalties — er, taxes — through which the federal government may regulate in areas heretofore beyond its power, and to do so without facing the political heat for crafting a “tax.”  To read the opinion is to get a sense of the answer, as Roberts offers a hypothetical about requiring individuals to purchase energy efficient windows, enforced by a tax for failure to comply.  And with that, the storm clouds over limited federal government get darker.

Robert Alt is the Director of Rule of Law Programs at The Heritage Foundation.