The Obamacare Decision: A Mixed Bag


July 9, 2012

The case that received more media attention and more consideration by the U.S. Supreme Court than any in recent history has been decided. The 5-4 decision upheld the “individual mandate,” the central feature of the Patient Protection and Affordable Care Act, i.e. “Obamacare.”

Although the decision, crafted by Chief Justice John Roberts, contains much “bad news,” there is some “good news” for those who favor limited government.

First, the good news: The court found that the individual mandate, that provision requiring Americans to purchase health insurance or pay a penalty to the U.S. government, could not be found constitutional under the Commerce Clause. In this portion of his opinion, Roberts helps erect a constitutional barrier to a further expansion of the clause:

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Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority …. People, for reasons of their own, often fail to do things that would be good for them or for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.

This holding and analysis is extremely important for future cases where Congress tries to cavalierly invoke the Commerce Clause as authority for expanding federal power. As the dissenters acknowledge, this part of the opinion keeps the Commerce Clause from becoming a “font of unlimited power.”

The bad news is that following his strong limited-government opening, Roberts strained—or so it seemed—to find another basis upon which to uphold the individual mandate, thus saving Obamacare from having its linchpin pulled out. By doing so, he furthered an uncontrolled and ill-conceived effort to move Americans toward a European-style welfare state. What was his basis for upholding the individual mandate?

In a flimsy and unconvincing argument, Roberts concluded that the individual mandate can be upheld under Congress’ power “to lay and collect taxes.” Here are Robert’s own words: “[T]he mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”

What’s wrong with this?

First, the word “mandate” does mean “an authoritative command.” To say that it does not amount to a command is to deny the plain meaning of the word. Secondly, Justice Roberts’ attempt at an analogy is flawed. Persons who buy gasoline or earn income are engaged in an activity which the government is permitted to tax. Persons who do not purchase medical insurance are not engaged in an activity. So there is no analogy between buying gas and being taxed and not buying medical insurance and being taxed.

Readers of Justice Roberts’ opinion must be surely scratching their heads here. Isn’t this the same justice who earlier, in the Commerce Clause portion of the opinion, pointed out that the government could not properly claim to regulate “inaction” by persons? Now, he contradicts himself by claiming that the government can tax “inaction.”

There are other problems with calling the individual mandate a taxing provision. Foremost among them is that Congress itself framed the requirement to purchase insurance as a “mandate” enforced by a “penalty” and not as a “tax.” The distinction is a crucial one because Justice Roberts is attempting to argue that the individual mandate is a taxing provision, which Congress enacted under its taxing power. If, instead, the individual mandate provision is exactly what it claims to be—a requirement that persons purchase health insurance with a penalty attached—then the provision is not a tax. What makes his verbal shenanigans even more puzzling is that Justice Roberts, elsewhere in the decision, emphasizes the importance of deferring to the intent of the legislature. But in this part of the decision he ignores the very language that Congress used to describe its action—mandate and penalty. In place of the words that Congress chose, he substitutes his own language. As the dissenters point out: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Furthermore, Justice Roberts seems to minimize the coercive power inherent in “taxing” Americans who decide not to purchase health insurance. He says: “If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.”

True, but, what will happen if the individuals refuse to pay the tax? Then they will necessarily have to be treated as any other taxpayers who refuse to pay—the full force of the federal government will be applied to collect the tax.

The point is that whether a “tax” or “penalty,” the exaction is a heavy burden on low- and middle-income Americans for a product that they may or may not want to “purchase.” The Congressional Budget Office projects that by 2017, tax or penalty revenues likely to be collected will total $4 billion annually. Also, the Court points out that by 2016 individuals making as little as $35,000 per year could be paying the government $60 per month under the law’s dictate.

In summary, Justice Roberts started out well by limiting the power of the federal government under the Commerce Clause. However, he finished poorly when he engaged in verbal contortions to save the hastily drawn healthcare legislation. In the process, however unwittingly, he preserved this blatant legislative attempt to extend the power of the federal behemoth into the private medical decisions of ordinary Americans.

Copyright 2012 The Center for Vision and Values



  • John A. Sparks

    Dr. John A. Sparks is dean of the A. J. Calderwood School of Arts & Letters at Grove City College (Grove City, PA) where he teaches constitutional law and business law. A graduate of Grove City College and the University of Michigan Law School, he is a practicing member of the State Bar of Pennsylvania, a member of the State Bars of Michigan and Ohio, and a fellow with The Center for Vision & Values.

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