I have been out of town and not keeping up with all the chatter about the news that Chief Justice Roberts changed his vote after conference from invalidating the ACA, at least in part, to a vote to uphold it. The obvious question arises: was this switch motivated by legal considerations, or by the sort of political considerations that had been urged upon him, after the case was submitted, by supporters of the ACA? Of course, deciding what motivated any particular decision must necessarily be judged by circumstantial evidence. Unless he expressed his motivations to others, only the Chief Justice has personal knowledge of exactly why he changed his vote (assuming that the reporting of this vote change is accurate). The same was true of why five of the nine Supreme Court justices ruled the way they did on the remedy issue in Bush v. Gore (after seven justices found an Equal Protection violation in the way Florida was counting its ballots). Yet, at least in academic circles, this speculation has taken on the status of ontological truth: The five “Republican” justices handed the election to “their” party’s candidate?
I have always believed that the circumstantial evidence for this proposition was thin, and I have resisted the suggestion that Bush v. Gore was a nakedly political decision, though of course I have to allow for the possibility that it was. The only “evidence” for this conclusion, apart from the party affiliation of the President who nominated them (which is pertinent) was the Equal Protection reasoning of the decision, which an area of my specialty. I don’t wish to rehearse these arguments here, but I do know the judicial reasoning was the primary circumstantial evidence that persuaded many of my colleagues.
Which brings me to the remarkable nature of the legal analysis of Chief Justice Roberts opinion. He appears to have been the first person in the United States to have adopted this two-part legal analysis: (a) The individual insurance mandate is unconstitutional as beyond the Commerce and Necessary and Proper Clauses, and (b) the meaning of the “individual responsibility requirement” can only be upheld if given a “saving construction” to eliminate its character as a requirement, and render it an “option” to buy insurance or pay the tax, such that no one is actually bound or mandated by the requirement. [UPDATE: See my later post explaining this reasoning.]
Before last week, I know of no legal authority in the United States who claimed to hold this position.
Of course, the government and many academics have made a tax power argument, but only (so far as I am aware) as an additional basis for upholding the mandate as it existed in the statute. Not one of the many federal judges who have ruled upon the case adopted the view that the mandate was unconstitutional under the Commerce and Necessary and Proper Clause, and could only be saved under the tax power by a “construction” that deviated from its most obvious and most reasonable meaning. Perhaps I am mistaken, but I know of no academic supporter of the ACA who made this argument. The dissenting justices obviously did not hold this view. And, while the concurring justices did join in Justice Roberts opinion, thereby adopting its reasoning, their own view expressed in Justice Ginsburg’s opinion conforms to the views held by most academic defenders of the law.
Which leaves Chief Justice Roberts alone, of all the persons who ever have opined on this case in a careful matter, to hold the view he adopts in his opinion. Apparently, after preparing for and sitting through 3 days of oral argument, even Chief Justice Roberts did not hold this distinctive legal position to be persuasive – if he had imagined the view at all – until weeks later.
So when focusing solely on the legal merits of the Chief Justice’s decision, as articulated in his opinion, we are entitled to factor into our analysis that no one before him ever thought that this legal position was compelling enough to advance it as their own.
Bear in mind that what defines “circumstantial” evidence, as opposed to “direct” evidence, is that, by definition, circumstantial evidence is consistent with more than one conclusion. A fingerprint at the scene of the crime is circumstantial evidence that is consistent with it being put there during the crime, or at some point prior to the crime, or even planted later. So too with the uniqueness of Chief Justice Roberts’ legal position.
Obviously, he could have been persuaded that the mandate was unconstitutional after oral argument, and sometime later he came also to be persuaded that he had a purely legal duty to give a “saving construction” of the statute, for reasons that have nothing whatsoever to do with the political implications to the Court of invalidating the President’s “signature” legislation by a 5-4 vote of Republican-nominated justices. But if the strength of the legal reasoning of an opinion is relevant to assessing the motivation of its author – as has been so long and loudly been claimed about all five justices in the majority of Bush v. Gore – then it seems pertinent as well that Chief Justice Roberts was the only person in two years to look at this legal dispute and reach this legal conclusion.
I wonder if there has ever been another case in Supreme Court history to be decided by a single justice’s legal theory that had not previously been held or advocated by any other person in the United States before he announced it. One even he had not deemed persuasive until some time after his initial conference vote (a fact that no one seems to dispute). Whether or not it was political, the uniqueness of Chief Justice Roberts’ opinion may well be unprecedented.
[Generally cleaned up text and added an update]
[UPDATE: From the abstract it looks like Neil Siegel and Bob Cooter anticipated Chief Justice Roberts approach in their paper, Not the Power to Destroy: A Theory of the Tax Power for a Court that Limits the Commerce Power and may even have provided him with the road map for his analysis. If so, they should get a share of the credit that is now flowing to Jack Balkin and Akhil Amar who contended that the whole mandate could be an exercise of the tax power. Here is the abstract:
Effective limits on the power of Congress to regulate interstate commerce require the Court’s tax power jurisprudence to reinforce restrictions on the Commerce Clause. Otherwise Congress can circumvent limits on its commerce power by calling regulations backed by penalties “taxes” and justifying them under the tax power. When the Court restricted federal commerce power in the 1920s and 1930s, it distinguished between taxes, which raise revenues, and penalties, which regulate behavior. This distinction is useless because so many federal exactions do both, like the 18th century “imposts” that raised revenues from imports and suppressed foreign competition with American industry. The post-1937 Court essentially abandoned judicially enforceable limits on the Commerce Clause, so it had no need to rethink or overrule previous distinctions between regulations of interstate commerce and taxes. Since its “new federalism” decisions, the Court has yet to reconsider the constitutional scope of the tax power. As a result, judges and litigants contradict one other in current litigation over the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA).
Legal theory helps to answer constitutional questions when existing doctrine does not. A person who must pay a pure penalty is condemned for wrongdoing. Moreover, she must pay more than the usual gain from the forbidden conduct, and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. A pure penalty prevents behavior, thereby raising little revenue.
Alternatively, a person who must pay a pure tax is permitted to engage in the taxed conduct. Moreover, she must pay less than the usual gain from the taxed conduct, and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relative low rates without enhancements do not coerce materially. A pure tax dampens conduct but does not prevent it, thereby raising revenues.
Situated between pure taxes and pure penalties are mixed exactions whose expression sounds like a penalty and whose material characteristics look like a tax. Thus the ACA’s exaction for non-insurance has a penalty’s expression and a tax’s materiality. Should courts interpret a mixed exaction as a tax or a penalty? Our answer depends on the exaction’s effect. If an exaction dampens behavior and raises revenue, then it should be interpreted as a tax, regardless of what the statute calls it. If an exaction prevents behavior, then it should be interpreted as a penalty. The Congressional Budget Office predicts that ACA’s exaction for noninsurance will dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the exaction is a tax for purposes of the tax power.
There are two important difference between Justice Roberts approach and that of Siegel and Cooter: First, they do not appear to adopt the view that the individual insurance mandate exceeds the commerce power. Second, they did not feel the need to adopt the "saving construction" approach that is the heart of Roberts' analysis. So his position remains uniquely his, though maybe we now know whence he got his "out." Moreover, the novelty of their argument, relative to all other law profs underscores the novelty of his position too. But this is clearly a partial "precedent" for the view he ultimately adopts.
I thank Professor Siegel for bringing this to my attention and urge others to download his piece. It now only has 162 downloads. Which only goes to show, it only takes one, if it is the right one.]