Yesterday I realized why I went to law school.
When I woke up yesterday morning, my feelings were reminiscent of a little girl on Christmas morning. The excitement, the nervous anticipation, the “I-hope-Santa-brought-me-this-or-that” anxiousness, and the knowing that no matter what I unwrapped, I was going to be elated. This was how I felt prior to 10 a.m. ET Thursday morning. My leg bounced under my desk as I tried to focus on the mountain of legal files next to me, but all I could think about was “unwrapping” the Supreme Court’s decision on the Affordable Care Act. And while I was curious as to the arguments the Court would make, who would write the opinion, and what Obama’s reaction would be, of one thing I was certain. The ACA would undoubtedly be struck down as unconstitutional.
Many law students, after having taken Constitutional Law, feel they are now Con Law experts. They will argue circles around their lay friends and family members at any mention of Roe v. Wade, Wickard v. Filburn, or Snyder v. Phelps. While I generally loathe anything having to do with law school and try to avoid legal conversations with non-law students at all costs, after taking Health Care Law, I found myself on the Con Law bandwagon. The ACA was a topic of which I could not read enough. I read the 11thCircuit’s opinion, with its masterful history of the Commerce Clause and point-by-point explanation of why the ACA is simply an unconstitutional expansion of government. I read the 6th Circuit’s opinion, which throws everyone into the health care market by labeling those who are uninsured and actually not in the health care market at all “self-insured.” I read the oral arguments, in which dark horsemen Alito and Scalia came to battle against ACA proponents Kagan and Sotomayor, the former being the obvious victors. At the end of my journey I came to no other conclusion – The ACA is unconstitutional – and it is impossible for the Supreme Court to rule otherwise.
Unfortunately for me, you, and every other American in our great nation, I was wrong. Reading Justice John Roberts’ opinion yesterday was like opening the last present on Christmas morning – what you hope will be the best of all – and realizing it’s a pair of socks. Santa screwed up. But this isn’t about a pair of socks. This is about our rights. While Roberts conceded that the ACA violated the Commerce Clause in its effort to compel rather than regulate commerce, his deciding vote renders this concession moot. This decision, in all practicality, allows for unbridled regulation by the government, including regulation of inaction. By virtue of being alive, you are now vulnerable to – no, not vulnerable to – under mandatory regulation. (This point, I am making for those of you who think that mandated health insurance is likened to mandated car insurance. While you are correct, the government mandates you to by car insurance, you are not mandated to buy a car. If you want to own a car, you have to buy insurance; but if you don’t want to buy a car, then no insurance is required. The individual mandate is qualitatively different from car insurance in that, from birth, you do not have a choice. You must buy health insurance because you are alive. Now how do you feel about it? Feeling free? I didn’t think so.) If you don’t want to purchase health insurance, you are going to have to pay a penalty, a penalty that could be up to 2.5% of your household income.
But wait a minute. Didn’t Justice Roberts say this is in fact a tax, not a penalty? Indeed. Through the taxing power, the Supreme Court says the individual mandate is constitutional. But what does that mean, in real terms? How is that different from unconstitutionally expanding the Commerce Clause? In essence, it isn’t. But there is something equally disturbing about the majority’s conclusion here. First, as the dissent points out, the Supreme Court has “never” held that a penalty is a tax. Yes, the Supreme Court has said that taxes may be so prohibitive that they become a penalty, but never has the Court ruled that a penalty – especially one which is explicitly called a penalty 18 times in the language of the law itself and explicitly denied as a tax by our president – can be considered a tax. Somehow, though, the majority decided that the non-tax/penalty you have to pay if you refuse to purchase health insurance is actually a tax for constitutionality purposes. Sounds like a lot to swallow? Now consider this: Under the Anti-Injunction Act, the court only has jurisdiction to hear cases related to taxes once the tax has been implemented and tax payers have been “harmed” by the tax. Otherwise, tax payers have no standing, and the court has no jurisdiction to hear the case because it is not yet ripe (Con Law 101). This is what the D.C. Circuit concluded when it heard this case. However, in a remarkable feat of linguistic gymnastics, the majority found that it does in fact have jurisdiction to hear the case because while the law instructs that the “penalty” will be “collected in the same manner as taxes,” it is not actually a tax. The Anti-Injunction Act does not apply to penalties collected in the same manner as taxes that are actually not so bad to be considered penalties, so they should just be taxes… You’re not crazy. That doesn’t make sense. The dissent agrees with you. The government would have us believe that “the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of sophists.” Thus sayeth the dissent.
I will not pretend that I am an economist. I do not have a clue as to how this will affect our nation financially (although I don’t expect it to be positively). I will not pretend that I am anti-Obama. I voted for him after all. I will not pretend that I don’t support affordable health care. I absolutely do. But I will also not pretend that the ACA is constitutional, as our friends Roberts, Kagan, Ginsburg, Breyer, and Sotomayor did yesterday. The dissent is, in my opinion, flawless. Its logic cannot be challenged with logic. The politically charged opinion, which is now a dangerous precedent, is riddled with what can only be described as propaganda. It is a desperate attempt to keep the law – which the government admits cannot survive without the individual mandate – from crumbling to the ground. But as the dissent points out, our Constitution does not have a “whatever-it-takes-to-solve-a-national-problem power.” The Supreme Court, in its effort to salvage the ACA, has effectively expanded the Commerce Clause to unyielding federal power, destroyed our freedoms, and created a national problem far greater than that which it sought to solve.
And now I’ve realized the Supreme Court’s decision has ruined two holidays – one metaphorically, and one literally. Happy Independence Day.
