POLITICS MARCH 28, 2012
More than any Supreme Court case in memory, the health care lawsuit has produced a tangle of constitutional positioning, with both the Obama administration and its challengers at various points contradicting themselves and making arguments they can’t possibly believe. There is plenty of blame for this situation to go around: You can blame the lawyers and politicians on both sides; you can even, in some respects, blame the Supreme Court justices themselves. But, whoever is responsible, it’s clear that the two-year litigation marathon over health care has served to cloud and confuse what should have been a fairly straightforward constitutional debate.
Consider the question that the Court took up on its first day of oral arguments: Should the justices decide the case now or wait until April 2015, when the first penalties for refusing to buy health insurance are due? The technical question is whether an 1867 law concerning taxes—the Anti-Injunction Act—should keep the Court from considering the health care suit until those who refuse to buy health insurance have been hit with a penalty. In order to decide this question, the Court has to determine whether the penalty associated with the individual mandate is or isn’t a tax. And that question has tied both the administration and its challengers in knots.
During the congressional debate, Democrats insisted that the health care mandate wasn’t a tax, while Republicans were equally vehement that it was a tax. Then, as soon as the ink was dry on the bill, both sides rushed into court and switched positions in light of their litigation strategies: Republicans decided the mandate clearly wasn’t a tax and was therefore not authorized by Article I of the Constitution, which allows Congress to pass tax laws; and the administration decided the mandate was a tax and was therefore both justified by Article I of the Constitution and protected from immediate legal challenge by the Anti-Injunction Act. Then the administration switched positions again and announced that the penalty for refusing to buy health insurance was a tax in the sense of being authorized by Congress’s taxing power, but wasn’t a tax for the purpose of preventing the Court from hearing lawsuits now rather than in 2015. As Justice Samuel Alito told the solicitor general on the first day of oral arguments: “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.”
This final contortion was driven by the hyper-legalistic scrutiny to which the Court is subjecting the health care law. In the minds of the justices, their decision to hold a historic three days of oral arguments may have been a sign of the meticulous consideration that they want to give to every detail in the case. But the result has been to force the administration’s lawyers to make transparently self-contradicting arguments. Couldn’t the justices have simply skipped ahead to the obvious conclusion that—as Justice Stephen Breyer suggested at oral arguments—the case doesn’t fit within the spirit or letter of the 1867 law? Indeed, since this seemed to be the consensus view among the justices, it’s not clear why they needed a full day of argument and scores of briefs on a point neither side asked the Court to address in the first place.
For more evidence of the contorted nature of the debate, consider the central issue in the case: the question of whether the health care mandate can be justified by Congress’s constitutional power to regulate interstate commerce. The mandate’s challengers, led by Randy Barnett of Georgetown University, chose this line of argument because it was the one most likely to appeal to the conservative justices on the Court. The argument, in a nutshell, is that Congress unconstitutionally invaded states’ rights by passing the mandate. The catch, however, is that most conservative opponents of the health care law don’t believe this at all: They think that neither Congress nor the states can compel people to buy health insurance. But, since Barnett and the other challengers accurately calculated that none of the Court’s conservative justices would buy this argument, they declined to advance it. (The candid, but radical, argument that both federal and state health care mandates violate the liberty of contract by “[c]oercing commercial transactions” seems to appear in only one of the Supreme Court briefs—the one filed by the libertarian Institute for Justice.)
Some states are now contemplating the possibility of devising alternatives to the federal mandate if the Supreme Court strikes it down—alternatives that sound suspiciously like state-level versions of the federal mandate. If these laws pass, you can bet that some of the same pro-business groups that are currently challenging the federal mandate as a violation of states’ rights will rush back to court to challenge the new mandates as a threat to national uniformity.
The Supreme Court can go a long way toward putting an end to this mess with a clear ruling along the following lines: The suits can proceed, because the penalty for not buying health insurance isn’t a tax; and Congress has the power to impose a penalty on people who refuse to buy health insurance, because that decision has massive effects on interstate commerce. Still, even if the Court ends up at this point after all, it will be a shame that it took two years of unnecessarily contorted legal debate to get there.
Jeffrey Rosen is the legal affairs editor of The New Republic. This article originally appeared in the April 19, 2012 issue of the magazine.