Some Thoughts On The Constitution

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.

– Robert Alt on SCOTUSblog, June 28, 2012

Dear Mr. Alt,

I’m not a Constitutional lawyer, but it is obvious to any fair-minded reader that the Constitution says X, Y, and Z and not A, B, and C. So for example, no where in the Constitution do we find the phrase “a right to privacy”; likewise, relevant to this case, no where in the Constitution do we find words to the effect that Congress can mandate the purchase of a product or service and/or exact penalties for failing to purchase said product or service.

On its face, the ruling it a plain power grab, end of story. (Do click on that link — it is ‘Sonic Charmer’ at his angry best).

However, one thing does bother me about your astute analysis, and I’ve seen it said by other Constitutional scholars I respect. You suggest that it would be Constitutional to enact a single-payer health care system if Congress used their taxing power. My question is how? Where in Article 1, Section 8 does it say Congress has this power? In the list of enumerated powers there is nothing about providing health care for the citizens of the U.S. What the heck is going on here! When did the Supreme Court decide Congress could ignore the enumerated powers? How far back does the rot go?


About Fake Herzog

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One Response to Some Thoughts On The Constitution

  1. The taxing part was established by precedent, and upheld by many SCOTUSes before this one. Doesn’t make it right–but doesn’t nullify constitutionality. You wouldn’t want the Supreme Court ignoring precedents, because then a lot starts to unravel.

    The rot goes back to the New Deal, actually: this was the same trick used then, too, to foist some of that horror on us. And because the Constitution does not expressly limit Congress’ power to tax, it is almost effectively unlimited. However, because it is a tax, certain rules must be followed (originate in the House, be able to withstand challenge after revenues collected, etc.), which (a) did not happen with Obamacare and (b) are spelled out in Roberts’ opinion as potential avenues to challenge the legality of the law through other legal (i.e., non-Constitutional) means.

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