The WSJ Editorial Page Has, Er, A Point

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My first reaction to the conservative fulminating against John Roberts was that the right doesn’t realize how good they have it. The chief justice finds a way to limit future government activism while preserving (actually resurrecting) the nonpartisan standing of the Supreme Court, and all for the low-cost of a affirming domestic program that, while no doubt detested, was democratically enacted, and conservatives can’t find something nice to say about him? This struck me as ungrateful in the extreme. 

But I’ve begun to understand what all the fuss is about after reading this Wall Street Journal editorial:

Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blurlegitimate taxes may also have strong punitive aimsbut scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.

Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. … 

America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.

That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society. …

Chief Justice Roberts has … eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.

I have no idea how sound the legal reasoning is behind this, or how sincerely the Journal editorialists believe it (as opposed to just being ticked off that Roberts affirmed ObamaCare). But if I were a right-wing constitutionalist type, the idea that taxes shouldn’t “morph” into a way to regulate behavior the government doesn’t otherwise have the power to regulate would certainly sound compelling to me. And I’d be pretty upset that Roberts had stomped on this principle in order to save a Democratic president’s biggest domestic accomplishment. In fact, if I were such a person, I might think Roberts should have had the cojones“cojones” being a term of art in these quarters, I'm reliably toldto cite the Commerce Clause if he were really intent on upholding the law. 

Having said that, if I were a right-wing constitutionalist type, I wouldn’t be satisfied with any rationale for saving ObamaCare, which as a non-right-wing constitutionalist type I’m pretty happy to see affirmed. So maybe this is neither here nor there. 

Update: Some readers have responded that Roberts' tax argument is perfectly coherent: The financial penalty for not having insurance is essentially a user fee for a service you can't opt out of (since emergency rooms can't refuse to treat you), which makes it functionally a tax. That makes sense to me--but that's because I buy the argument that everyone's already in the market. But, in his opinion, John Roberts emphatically doesn't buy the already-in-the-market argument and then rejects the idea that you can regulate "inactivity." That's where the incoherence arises: Conservatives are saying it can't be the case that regulating inactivity through the Commerce Clause is unconstitutional, but regulating it through Congress's taxing power is kosher. 

For what it's worth, Roberts does briefly engage with this critique in his opinion. But even I didn't find it very compelling, and I don't have a stake in what's essentially an intra-conservative fight. 

One semi-related point worth making: Reading the opinion, it strikes you that the crux of the disagreement between liberals and conservatives--or at least Affordable Care Act supporters and the conservative justices--is what the market actually consists of. The administration suggests the relevant market is health care. Since everyone will eventually need health care by virtue of being, you know, alive, everyone's in the market, and their relationship to the market can be regulated. The conservatives suggest that the relevant market is health insurance, which not everyone needs and therefore can't be compelled to buy. In terms of conservative frustration with Roberts, the complaint is that he accepts this framework when it comes to the Commerce Clause but then basically disregards it when he affirms the law under Congress's taxing power. (Roberts would say the two questions are analytically separate. But, again, that seemed half-hearted.)

Update II: I deleted a parenthetical about the administration making the tax argument its backup plan because it may have been concerned about this critique. As commenter JakeH points out, that almost certainly wasn't the case. The administration's obvious concern with the tax argument was that the legislation doesn't refer to the penalty for violating the mandate as a "tax." 

Follow me on twitter: @noamscheiber

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