The Volokh Conspiracy

My George Mason colleague Eric Claeys has an insightful piece at the National Review website on how opponents of the individual mandate should respond to the Supreme Court’s decision upholding it:

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

I agree with Eric that Obamacare opponents have every right to continue attacking its constitutionality. The other branches of government and the general public have to obey Supreme Court decisions. But they don’t have to agree with them or refrain from urging their reversal. This goes double for a closely divided 5-4 decision resting on highly contestable reasoning that could well be reversed or narrowed by a future Court. Just as liberals continue to attack decisions they oppose, such as Citizens United, conservatives and libertarians should oppose Sibelius. I think Eric is also correct that the other branches of government can reject a policy as unconstitutional, even if the Supreme Court rules that it is permissible. This is particularly true in a case like this one, where Chief Justice Roberts explicitly rejected the “most natural” reading of the individual mandate law and adopted an extremely strained alternative for the purpose of saving it from invalidation.

Eric also has a good summary of some the reasons why the Chief Justice John Roberts’ opinion upholding the mandate as a tax was wrong:

To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.

Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.

As a matter of short term political strategy, it’s hard for me to say whether the GOP will be better off adopting Eric’s strategy, or instead accepting the Court’s ruling that the mandate can be considered a tax, and then attacking Obama for violating his promise not to increase taxes on the middle class. The latter strategy would be a reversal of the position most Republicans adopted during the Obamacare litigation. But the electorate often rewards opportunism more than consistency. Be that as it may, I certainly hope that opponents of the mandate adopt a long-term approach like that urged by Eric.

In response to my post arguing that Chief Justice Roberts’ vote in the individual mandate decision failed to enhance the Supreme Court’s legitimacy, co-blogger Orin Kerr argues that Roberts may have been motivated by a different definition of legitimacy, one seemingly unrelated to popularity:

If Roberts is thought to have been influenced by public pressure, though, wouldn’t that pressure push him to strike down the mandate, not uphold it? Ilya speculates that Roberts was trying to gain the acceptance of “traditional liberal legal elites” like liberal law professors. They held the opposite view from the public, so perhaps Roberts was caving into their pressure despite public opinion as a whole....

But Ilya’s speculation that Roberts was trying to please “liberal legal elites” strikes me as far-fetched. Until the mandate case, Roberts has been a reliable conservative vote. He has written and joined decisions that greatly enraged the “traditional liberal legal elites,” such as Citizens United and and Parents Involved v. Seattle School District....

The way out of the puzzle is to recognize the difference between legitimacy and popularity. Chief Justice Roberts cares about the legitimacy of the Supreme Court. He has a conception of the judicial role in which judges generally don’t jump into the political thicket and make themselves major players on the political scene. This was the often-ignored point of his umpire analogy during his confirmation hearings: “Nobody ever went to a ball game to see the umpire.” The umpire is legitimate when he is unobtrusively calling pitches, but if he makes himself the story of the game, something has gone wrong. We can agree or disagree with this conception of the judicial role. But this is a very different concept than popularity.

Orin seems to be using the term “legitimacy” in a way different than most other commentators on the Supreme Court do. Usually, it is used to denote the Supreme Court’s reputation with the general public or with some subset of legal or political elites. I would also note that the “speculation” that Roberts sought to enhance the Court’s reputation in the eyes of legal elites is not my personal invention, but rather the claim made by various Supreme Court leakers. As I have written several times, we don’t have enough evidence to prove or disprove the claim, though it strikes me as plausible.

Whatever the true explanation for Roberts’ decision, Orin’s theory is unlikely to be it. If Roberts has an aversion to entering the “political thicket” – in the sense of making decisions striking down politically important and controversial laws – he would not have voted as he did in Citizens United, Parents Involved and other similar cases. Each of those decisions was highly controversial and was denounced by critics as “political.” In Orin’s terms, Roberts was certainly a big part of “the story of the game” in those cases; he quite obviously was not “unobtrusive.”

Moreover, if this was the motivation for his vote in the individual mandate case, it is difficult to see why he originally wanted to strike it down. After all, he surely knew for many months that the individual mandate was a centerpiece of the president’s most important legislative accomplishment and that any decision striking it down would be politically controversial.

The sequence of events therefore renders Orin’s theory unlikely. That, of course, does not prove that Roberts switched in order to enhance the Court’s reputation with legal elites. But the latter theory does at least fit the timeline, since he seems to have switched right around the time that many such elites started aggressively claiming that a decision striking down the mandate would not only be wrong, but a catastrophe for the Court’s legitimacy. It is true, of course, that he bucked those same elites in earlier cases. But none of them involved as extensive an elite campaign to challenge the Court’s legitimacy, certainly not before the decision was even reached.

It’s also worth noting that a judge’s refusal to strike down what he believes to be an unconstitutional law because of its high visibility and great political significance is itself a political decision. To borrow from Roberts’ famous analogy between umpires and judges, it is similar to an umpire refusing to call a strike on a star hitter batting in a key situation in the World Series, even though he would have called the same pitch a strike on a less important occasion with a less famous hitter at the plate. As Roberts himself put it, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” [emphasis added]. A judge who applies the rules differently depending on the importance of the law at stake is making the rules rather than merely applying them.

I still think it’s possible that Roberts switched for some other reason, including that he simply just came to like the federal government’s tax argument on legal grounds. It’s also possible that he had more than one motive. The purpose of my posts on Roberts’ switch was not to definitively settle the question of why he did it, but rather to explore the legal and political implications of his decision. Obviously, I recognize that the latter depends in part on the former. So I have always been careful to note that we do not have anything approaching definitive evidence of Roberts’ motives.

Various leaks suggest that Chief Justice John Roberts switched his vote in the individual mandate case in order to protect his own and the Supreme Court’s reputation and enhance their legitimacy. Whether or not that was his objective, it is interesting to ask whether the goal was achieved. Did the decision enhance the Court’s legitimacy more than it detracted from it?

So far, the answer seems to be “no.” Post-decision polls show that the majority of the public disagrees with the mandate decision, and overall public approval of the Court has fallen substantially. These results were entirely predictable based on pre-decision polls, which consistently showed that an overwhelming majority wanted the Court to strike down the mandate, including even a slight plurality of Democrats.

Roberts probably did succeed in enhancing the Court’s reputation among law professors and left-wing legal elites, many of whom would have been very angry if the Court had invalidated the mandate. But even among this group, the results are somewhat equivocal. Many of them probably believe or at least suspect that Roberts switched his vote out of fear for his reputation rather than because he genuinely believed in the federal government’s dubious tax argument (which had been rejected by every lower court to have considered it, including several liberal judges). Those who do believe this may be happy about the result; but it is unlikely to enhance their opinion of Roberts himself, who on this account comes off as a man who cares more about his and the Court’s reputation among legal elites than about enforcing the Constitution. And obviously, the reputational boost among liberal elites comes at the cost of reputational harm at the hands of their conservative and libertarian counterparts. Many will not soon forgive Roberts, especially if additional evidence comes out that reinforces the perception that he switched for reputational rather than legal reasons.

It is still possible that the mandate decision will improve the Court’s reputation in the long run. If future generations endorse the liberal view that judicial enforcement of constitutional limits on federal power is always or almost always inappropriate, then Roberts will come out looking prescient. But it’s at least equally likely that future opinion will move in the opposite direction, in which case Roberts’ ruling will be even more unpopular than it is today. Over the last thirty years, the idea of judicial enforcement of federalism has gained an enormous amount of ground. It’s possible that that trend will continue rather than be reversed.

As I have previously emphasized, enhancing his own and the Court’s reputation is not the real job of a Supreme Court justice. If Roberts believed that the mandate was constitutional, he had a duty to vote to uphold it even if the Court’s reputation might be harmed as a result. We still don’t know enough to be able to tell what his true motive was, and cannot rule out the possibility that it was purely legal. But if reputational concerns really were central to his decision, it is ironic that, so far, it hasn’t worked out very well.

Justices interested in enhancing their reputations could potentially learn at least two valuable lessons from this experience. First, traditional liberal legal elites are not the only important arbiters of judicial reputation. Both nonliberal elites and the general public have considerable clout of their own, at least on cases big enough to attract significant public attention. A decision popular with the former group can still diminish the Court’s legitimacy if it angers the latter two. Kelo v. City of New London and the individual mandate case are good examples of this phenomenon. Second, in this age of leaks, a justice who casts his vote for reputational reasons may not be able to keep that fact secret for long. And when the public learns what he did, the result could well harm his reputation more than it enhances it.

At SCOTUSreport.com, Nicholas Quinn Rosenkranz has an excellent post on Chief Justice Roberts’ use of the canon of constitutional avoidance in NFIB v. Sebelius. As Professor Rosenkranz notes, “The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd.” Specifically, the Chief used the canon not to resolve a statutory ambiguity, but to construe a statutory provision in a way other than it was written.

when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense. This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. The Chief is not interpreting the meaning of a statute to avoid a constitutional problem. Instead he is characterizing a statute—whose meaning is not in doubt—to be a tax for purposes of the Constitution. . . . The canon of constitutional avoidance only applies when a statute is ambiguous—that is, when it is unclear what rights and duties the statute creates. Since there is no such ambiguity in the individual mandate, the canon does not apply.

As a consequence, Rosenkranz argues, once Roberts concluded that the mandate, as written, was a penalty, not a tax, that should have been the end of the matter.

Over at ElectionLawblog, Rick Hasen comments that however bad the Chief Justice’s application of the avoidance canon was in NFIB, it was worse in NAMUDNO v. Holder, where the Chief wrote an opinion for eight justices that adopted a strained reading of Section 5 of the Voting Rights Act to avoid confronting the question of its constitutionality. In Citizens United, on the other hand, Roberts joined the majority in refusing to adopt a narrowing construction of the statute, and authored a concurring opinion stating that the Court should not adopt a narrow decision just because it is narrow, but that it “must also be right.” Hasen wonders what can explain this difference.

As I noted in this post, I think the pattern of the Chief Justice’s behavior is a product of multiple elements within his jurisprudence. First, I think he genuinely believes in constitutional avoidance as an important principle. He also believes that the Court should strive to bring clarity and concreteness. As a consequence he dislikes splintered holdings. Thus, in NAMUDNO he was willing to adopt a strained reading of the statute on avoidance grounds because other justices were willing to go along. Similarly in FIB, while other justices did not join the portion of his opinion on avoidance, a majority did embrace his conclusion that the mandate could be viewed as a valid exercise of the taxing power. In Citizens United, on the other hand, embracing constitutional avoidance would have required the Chief to adopt a statutory interpretation that was rejected by all eight other justices. Thus, he would have written a controlling opinion based on a premise that every other justice rejected. Yet, according to Jeffrey Toobin’s reporting, he was prepared to go the narrow, avoidance-based route when it appeared other justices would agree.

While Prof. Hasen puzzles over the behavior of the Chief, I think it is the approach to avoidance taken by other justices that is harder to explain. Chief Justice Roberts appears ready to rely on avoidance quite aggressively to avoid invalidating statutes, but not at the expense of fracturing the Court. But what about, say, Justice Ginsburg? She wouldn’t join the Chief to adopt a narrow holding in Citizens United that would have saved the statute, at the expense of a holding with which she would have disagreed, but was in NAMUDNO. Is there a theory to explain this?

UPDATE: Rick Hasen responds: “I agree that if the Chief Justice offered to use the avoidance canon in Citizens United and the liberals refused to go along, that would indeed be puzzling. But for this reason I am unconvinced that on this point Toobin’s description is accurate.” The key part of this response is “on this point, as Prof. Hasen was quick to accept other aspects of Toobin’s report on CU.

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which established the modern – largely pro-government – standard for regulatory takings cases.

These longstanding attitudes were sometimes obscured by loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of that rhetoric. But most conservatives used the term “activism” to denounce decisions that they saw as departing from originalism, not simply ones striking down laws.

There is greater consistency than meets the eye on the liberal side too. While liberals have long favored aggressive judicial review on issues like privacy rights and defendants’ rights, they have for decades opposed nearly all judicial enforcement of structural limits on federal power, and most judicial protection for property rights and economic liberties. For nearly a century, the dominant left-wing view has been that such issues must be left to the political process. I think the latter attitude is misguided. But it’s hardly new.

In sum, the main disagreement between liberals and conservatives is not about whether judicial review in general should be deferential to the political process, but rather on what kinds of legislation should be treated deferentially and what kinds should not. There is also, of course, an important longstanding debate over methodology: whether the courts should rely on originalist methodology in deciding which laws to strike down, or whether they should give greater weight to various “living constitution” theories.

I don’t fully subscribe to either the conservative or liberal approaches to judicial review. And I don’t think either has been anything close to fully consistent over time. That’s especially true if you shift the focus away from scholars and judges to politicians and parties, which are more likely to be influenced by short-term political calculations. But both have been a lot less inconsistent than some commentators like to suggest.

The struggle over the individual mandate was not some strange role reversal. It was a continuation of a longstanding battle over the issue of judicial enforcement of federalism.

UPDATE: I should mention that I am still abroad, and therefore may not be able to respond to any responses this post may generate for some time. I took advantage of a short break in my travel schedule to write this post and my previous one.

UPDATE #2: Co-blogger David Bernstein reminds me of Rehnquist’s notable 1981 concurring opinion in Hodel v. Virginia Surface Mining, where he criticized the Supreme Court’s Commerce Clause jurisprudence for giving Congress too much power.

UPDATE #3: Alicea responds to this post here:

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows....

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role...

I end by noting that neither Somin nor [Ed] Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement.

With regard to Rehnquist, as I explain in my original post, he argued for strong judicial review on federalism and property rights issues long before the 1990s, and indeed going all the way back to the 1970s. in the 1976 article that Alicea cites, Rehnquist criticized not strong judicial review as such, but judicial review based on “living constitution” theories. He did not object to aggressive judicial review in cases where the legislature adopts laws that are unconstitutional from an originalist point of view.It is also important to emphasize, as I briefly note above, that Rehnquist was not alone in holding those views. Several other conservative justices of the era expressed similar views on federalism, notably Sandra Day O’Connor. Robert Bork did indeed express a more deferential approach to judicial review. But even he suggested in his writings of the 1980s and early 1990s that much of the post-New Deal federalism jurisprudence was questionable. Other prominent conservative jurists made similar statements. Thus, Alicea is wrong to trace the change in conservative perspectives on these issues only back to the 1990s. In reality, it dates back at least to the early to mid-1970s.

I should add that when I said that, on Alicea’s theory, “the individual mandate case represents a sea change in conservative attitudes to judicial review,” I did not mean to suggest that he thinks the sea change occurred only as a result of this case, but rather that the conservative reaction to the mandate is part of a relatively recent change in attitude. I apologize for any confusion on this point. However, I think we do differ in so far as he portrays the change as a relatively recent development, whereas in my view it had deep roots going back several decades.

Finally, I agree that there are at least two views of the judicial role among conservatives. Indeed, there are probably many more than just two. My point, however, is that many prominent conservatives have been arguing for strong judicial review on federalism and property rights issues for a long time now. Neither the 1990s nor the individual mandate case represented a sea change in that respect.

In this recent post, political scientist Steven Teles argues that Chief Justice John Roberts’ decision to uphold the individual mandate was motivated by “statesmanship”:

[M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the rest of the four justices to go along with him. So he ended up having to cut a deal with the liberals....

Roberts, no doubt influenced by his position as Chief Justice, made the call that he could pull at the seam of the law pretty hard but couldn’t unravel it completely. Doing so really would put the Supreme Court in a state of outright war with the Democratic Party. There is an element in Supreme Court decision-making that can be explained by statesmanship rather than jurisprudence. Law professors are unlikely to be very impressed with that element, but it’s a real, permanent and unavoidable aspect of our system of government. On no really important aspect of jurisprudence did Roberts actually break from his conservative brethren, but he did make a different political judgment than they did—not on what the Court could get away with, but what was really appropriate for it to do on a matter of such great policy significance.

Like Teles, I don’t doubt that political considerations influence Supreme Court decision-making, though, in all but very exceptional cases, I take a dimmer view of such decisions than he does. I am a big fan of Teles’ academic work on legal issues. But the particular scenario he envisions in this case is unpersuasive.

If Roberts believed that the individual mandate should be invalidated, but severed from the rest of the law, he did not need the support of the other four conservatives to achieve that result. He could simply have joined with them in striking down the mandate, but also written a separate concurring opinion on severability holding that the rest of the law (or all, but a few parts), is severable and so has to remain. He could have achieved that result either by relying on the four liberals to give him the votes he needed on the severability issue or writing a concurring opinion that, because it would be the narrowest one in the majority, would be controlling under Marks v. United States.

More generally, I highly doubt that the Democratic Party would have gone to “outright war” with the Court over a decision that would have enjoyed overwhelming public support, and especially after the Court gave the Democrats important victories in every other major case decided this year, such as Arizona v. United States. If the Democrats did launch a “war” over the decision, the Court would almost certainly have prevailed and emerged stronger than before.

I’m not sure why Roberts switched his vote in the mandate case. Perhaps he really was almost the only jurist in the world who bought the government’s tax argument, while rejecting their much stronger Commerce Clause and Necessary and Proper Clause arguments. Perhaps he was worried about his own and the Court’s reputation in the eyes of key legal elites, as various leaks have alleged. But I highly doubt the reason he changed his mind was because he couldn’t get the four conservatives to agree with him on severability, and then decided that “statesmanshp” required him to uphold the mandate, even though he could easily have severed the mandate from the rest of the law even without the support of the other four.

This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings:

The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate seemed within reach. But despair is unwarranted. The negative consequences of the ruling for constitutional law are actually quite limited, and there is much in it upon which to build.

UPDATE: Just a quick update to clarify some points that I had hoped would be self-evident, but are not. First, to say there is a “silver lining” is to acknowledge that there is a cloud. In this case there is a significant one: the mandate was not struck down. The point of the essay, however, is that not all court losses are doctrinally equivalent. It is possible to lose a case like this in a way that opens the floodgates, and it is possible to lose a case like this on very narrow grounds that don’t upset settled doctrine all that much. In my view, a case like Gonzales v. Raich was the former. I never thought Raich had much chance to prevail (sorry Randy), but I had hoped for a very narrow, “marijuana-is-like-wheat” decision. What we got instead, in my view, were majority and concurring opinions with very expansive language.

NFIB, on other hand, is more of the latter. The fear was that if the mandate was upheld, the Court would blow through yet another potential limitation on use of the Commerce Clause or Necessary & Proper Clause. It did neither. For those who are disappointed the Court did not overturn Wickard, that was never on the table. The most anyone could have hoped for was for the Court to distinguish the mandate from prior precedents, as a majority of the Court ultimately did.

The Court upheld the mandate under the tax, and that’s a big cloud, but on narrow grounds — the mandate’s penalty functions as a tax, is non-punitive, etc. — and in a way that doesn’t allow Congress to do anything it could not already do. The income tax is littered with provisions that result in people within given income ranges paying more taxes to the feds if they fail to purchase certain goods and services. I would prefer it had the Court not made it easier for Congress to do this sort of thing, but the nature of the power is not new. So the loss on this point is rather limited. It’s a cloud, not a maelstrom.

Finally, the spending clause portion of the decision could turn out to be quite a big deal. For the Court to invalidate a condition imposed on state receipt of federal funds for the first time since the New Deal is quite significant — more significant than the tax power holding. In the end, my point is not that mandate opponents or federalism proponents should be be happy with this decision, but that, from a doctrinal standpoint, not much

Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.

In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.”

Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

The above language is a plausible argument for the Chief Justice’s tax/penalty analysis. But by discussing a window tax, the Roberts opinion provides one more reminder why the individual mandate, if it is a tax, is a direct tax, not an indirect tax. Direct taxes must be apportioned by state population. Art. I, sect. 9, cl. 4. If the individual mandate is a direct tax, then it is unconstitutional, because it is not apportioned by state population.

Pursuant to the 16th Amendment, direct taxes on income need not be apportioned, but neither the individual mandate nor the hypothetical window tax are taxes on income. Constitutionally, “income” subject to the federal income tax must be  ”undeniable accessions to wealth.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). A decision not to buy overpriced insurance from Congress’s Big Insurance pets, like the decision not to buy a particular type of window, is not an “accession to wealth.” The decision provides no additional income to the person.

So let’s accept Chief Justice Roberts’ theory that a window tax and the individual mandate are analytically comparable. On July 9, 1798, Congress enacted a direct tax statute, to pay for national defense preparations against France. “An Act to provide for the valuation of lands and dwelling-houses, and the enumeration of slaves, within the United States. On July 14, Congress passed the “Direct Tax Act,” to provide for collection of the July 9 taxes. Pursuant to the Direct Tax Act, federal assessors were to examine houses to assess them for purposes of the direct tax. In addition, the Direct Tax Act ordered the assessors make records of the number and sizes of windows in each house. The window data were to be gathered so that Congress could, in the future, decide to impose a direct tax on windows. Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution 76-77 (2004).

It seems there was no dispute that a window tax was a direct tax. A fortiori, a tax on not having certain types of windows would be also be a direct tax. This is one more piece of evidence that Chief Justice Roberts was wrong in stating that the individual mandate “tax” is not a direct tax. Much more extensive discussion of the direct/indirect tax issue (but not of window taxes) can be found in Rob Natelson’s 27 minute podcast on the subject, for iVoices.org.

I can’t speak to how the Chief Justice interacted with his colleagues on the Court during the deliberations in NFIB v. Sebelius, or to whether he truly flip-flopped on the mandate or (as Mark Tushnet suggests) he had been the “least persuaded” of the anti-mandate arguments at the initial conference and eventually concluded that it could be upheld. I do, however, think many of the Chief Justice’s critics have failed to recognize how this opinion fits with what we’ve seen from the Chief in his first several years of the Court. Specifically, I believe we can explain Roberts’ vote in a way that is quite consistent with his behavior in other cases and that does not require ascribing political motives to him. While I am not persuaded by Chief Justice Roberts’ opinion, I believe it squares with his overall jurisprudential approach for reasons I first noted here and here, and will elaborate upon in this post.

NFIB v. Sebelius was not the first case in which we saw Chief Justice Roberts embrace a strained “saving construction” of a statute in order to uphold it against a constitutional challenge. He did the exact same thing in NAMUDNO v. Holder. The Chief’s NAMUDNO opinion is quite unpersuasive — unless one believes there is a substantial independent value in avoiding declaring a law unconstitutional. The big difference between Roberts opinion in NFIB and his opinion in NAMUDNO is that in the NAMUDNO seven other justices were willing to go along. Both cases, however, show a justice willing to take liberties with statutory text if the alternative is to strike the statute down.

A second example can be found in Jeff Toobin’s behind-the-scenes account of Citizens United. There, Toobin reports, the Chief drafted an opinion that would have stretched the statute to exclude covering CU’s video, thereby avoiding the larger First Amendment question. While some academics and attorneys had advocated this result, few tried to argue that this outcome was dictated by the statutory text. In CU, as in NFIB, it turned out Roberts was the only one willing to accept this approach. The other conservatives were persuaded by Justice Kennedy to swing for the fences, and the Court’s liberals thought a saving construction was unnecessary to uphold the statute. After reargument, Roberts joined the Kennedy’s opinion invalidating the restrictions, but it appears not to have been his preferred course of action.

Additional evidence of the Chief Justice’s reluctance to overturn statutes can be found in A) his approach to severability — excising no more of a statute than is necessary to cure the constitutional violation (see, e.g., his treatment of the Medicaid expansion and his opinion in Free Enterprise Fund v. PCAOB); B) his hawkish approach to Article III standing, which keeps some challenges to federal laws out of court; and C) his preference for as-applied instead of facial constitutional challenges to statutes (see, e.g., his opinion in Wisconsin Right-to-Life v. FEC). Consider also that the Chief is almost as reluctant to overturn court precedents as he is to void federal statutes. So, for instance, he votes to deny standing in Hein v. Freedom from Religion Foundation, but refuses to overrule Flast v. Cohen, preserving an anomaly in the law of standing. The common thread is that he tries to avoid upsetting established legal rules and creating new law (though he is willing to do so when an issue is squarely presented and other justices will go along).

These cases show that Chief Justice Roberts would rather stretch statutory text that conclude that Congress and the Executive have overstepped their constitutional bounds. Thus it should be no surprise that the Court, under his leadership, has invalidated federal statutes and overturned precedents at a slower rate than under Chief Justices Renquist, Burger, or Warren. Further, the Chief Justice prefers to avoid splintered opinions (a phenomenon he lamented in his Rapanos concurrence) and is reluctant to author a controlling solo opinion.

When John Roberts was nominated to the Supreme Court, many predicted he would be a conservative judicial minimalist. That is, he would have a generally conservative outlook, but would try to decide cases narrowly, avoid disturbing precedents, and defer to the other political branches. Since becoming Chief Justice, this is what it appears Chief Justice Roberts has tried to do. From this perspective, his opinion in NFIB v. Sebelius makes sense. This doesn’t mean I agree with Chief Justice Roberts’ approach — in NFIB I certainly don’t — but I think we can understand it.

Amidst all of the leaks and counter-leaks about the process that led to last week’s individual mandate decision, I find it significant that the pro-Roberts counter-leakers do not contest what I think was by far the most damning claim in Jan Crawford’s original story: that Chief Justice John Roberts switched his vote not because he had a change of heart about the constitutionality of the mandate, but out of fear of attacks on his and the Court’s reputations. Indeed, some of the pro-Roberts leaking actually reinforces the notion that the latter was the reason for his switch. For example, if it is true that some two-thirds of what eventually became the dissenting opinion was initially drafted by Roberts, that makes it more likely that he had a strong belief that the mandate is unconstitutional. I doubt he would have taken the time to write a long and detailed opinion invalidating the mandate if he were not pretty clear in his mind that that was the way he intended to vote.

If fear of attacks on the Court really was his motive, it is extremely troubling for reasons I discussed here:

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject.... But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution. If fear of criticism by hostile politicians and pundits can deflect the Chief Justice from doing his duty, that does not bode well for the future.

Sometimes, the Court must strike down laws that violate the Constitution even when doing so is highly unpopular and might subject the Court to far greater criticism than Roberts would have gotten for ruling against a mandate that the vast majority of the public actually wanted to see invalidated. In this case, liberals may have been the beneficiaries of Roberts’ sensitivity to potential attacks on the Court’s reputation. In the future, it might be conservatives or others. Either way, courting popularity is not the proper function of a Supreme Court justice, at least not at the expense of his duty to the law.

I still do not think we have enough information to know what Robert’s real motive was with any certainty. The jury is still out on that question. So far, however, we don’t have any clear evidence against the claim made in Crawford’s story, and at least some circumstantial evidence backing it up.

Much literal and blogospheric ink has already been spilled over the question of whether the Court’s conclusion that the Commerce Clause does not authorize the individual mandate is part of the holding or mere dictum. I think, however, that there is a fairly simple solution to the problem: Just look at what the Court itself said the holding was. In Part III-C of Chief Justice Roberts’ opinion, which is a part of the opinion of the Court joined by the four liberal justices, Roberts writes: “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we ab­stain from the regulated activity.” The fact that the four liberals joined this part of the opinion suggests that they recognize that the Chief Justice’s reasoning about the Commerce Clause is part of the holding, even though they don’t agree with it. Perhaps they joined this part because they realize that this conclusion did in fact enjoy the support of five justices (Roberts and the four conservative dissenters). In any event, it seems to me that the official Opinion of the Court is the best possible authority on what is and is not part of the holding.

It is not completely clear whether this statement is meant to cover the Commerce Clause as augmented by the Necessary and Proper Clause, as well as the former alone. But given the reasoning of the rest of Roberts’ opinion (which covers both), I think the former interpretation is more likely.

I should add that I owe this point to co-blogger Jonathan Adler, who could not post it himself right now, and therefore authorized me to do it.

There are also other reasons for concluding that the Commerce Clause reasoning is part of the holding as well. John Elwood offers a more elaborate discussion of some of the relevant issues.

UPDATE: Co-blogger David Post responds to this post here:

That cannot be the right answer. A court’s holding defines the scope of its power; holdings must be obeyed, by citizens and by other (lower) courts. Dicta is the stuff that doesn’t have to be obeyed. Saying “just look at how the Court itself defined its holding” is like saying: “Just let Congress decide on the scope of its powers.” Courts cannot be allowed to define the scope of their own power because if they are, they’ll do what all institutions do when allowed to define the scope of its own power: expand it unmercifully. Of course Roberts and the 4 Justices who are with him on this question would like it to be called a “holding”! They think they’re right, and they’d like to have their view on the matter obeyed by others. But the holding/dictum distinction prevents them from doing that, over and over and over again. Courts don’t have to be obeyed when they propound on something they didn’t have to propound upon for the purpose of deciding the case the way they decided it. To decide that the mandate is within Congress’ taxing power, they didn’t have to decide that it is not within its Commerce Clause power.

I remain unpersuaded. The distinction between holding and dictum is an issue of technical legal doctrine. The Supreme Court is the ultimate arbiter of such issues in the US federal courts. If it were not, lower courts could disobey Supreme Court decisions they disagree with simply by declaring that they are dicta rather than holding. Moreover, the Supreme Court has issued many decisions expounding on what qualifies as dictum or holding. It would make little sense for them to do so if they did not have the power to define the difference.

It is also worth noting that the section of Roberts’ opinion I refer to was joined not by “the 4 Justices who are with him on this question,” but by the four who do not. The latter, too, recognize that the Commerce Clause is part of the holding.

David claims that his position is supported by the Federalist Papers, which stresses the need for constraints on institutional power. Of course the Federalist never says that courts lack the power to define the distinction between dictum and holding. Federalist 78 specifically indicates that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” The holding-dictum distinction is just one facet of “the interpretation of the laws.” Part of the task of interpreting the Constitution and statutes challenged as unconstitutional is determining what reasoning is needed to explain why they are upheld or struck down.

Allowing the Court to determine the scope of its own holding hardly makes its power unlimited, certainly not more so than the power to declare laws unconstitutional in the first place. There are, in fact, many other constraints on judicial authority, such as the nomination process and the courts’ dependence on other branches of government to enforce their decisions. Federalist 78 implicitly pre-refutes David’s argument as follows:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments....

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

Similarly, [i]t can be of no weight to say that the courts, on the pretense of a holding, may substitute their own pleasure for the reasoning actually needed to resolve a case. One can argue that the Court’s definition of its own holding is wrong, just as one can argue that the holding itself is wrong. But, in a hierarchical judicial system, lower courts cannot ignore the former any more than they can ignore the latter.

Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

Id. at 193. So what happens when votes supporting a proposition of law are supplied by dissents?

This is not simply a matter of academic concern. A majority of the Justices concluded in NFIB v. Sebelius that the Individual Mandate exceeded Congress’s Commerce Clause powers and the same group (plus Justices Breyer and Kagan) concluded that the Medicaid expansion violated Congress’s Spending Clause authority. But four of those votes, necessary to compose a majority, did not “concur[] in the judgment[]”—they dissented. (The same question arises in determining the “holding” of Williams v. Illinois, where—as Justice Kagan herself noted—five Members of the Court rejected the plurality’s reasoning at every turn, but four of them were in the dissent.)  What the Court has “held” is extremely important to lower courts seeking to apply the decision, especially because ordinarily only a “holding” can displace contrary circuit precedent.

Continue reading ‘What Did the Court “Hold” About the Commerce Clause and Medicaid?’ »

The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here:

Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted the mandate to be invalidated. But it also endorses some of our most important arguments.

Chief Justice John Roberts’ opinion for the Court actually rejects the federal government’s main arguments in favor of the mandate: that it is authorized by the Commerce Clause and Necessary and Proper Clause....

Sadly, Roberts undermined much of the impact of his reasoning by ruling that the mandate is constitutional because it is a tax. His dubious reasoning would allow Congress to use the tax power to mandate almost anything so long as the penalty for violating the mandate is a monetary fine structured similarly to the health insurance mandate....

Conservatives and my fellow libertarians should not be angry at Roberts merely because he voted against us in a close and difficult case. But it is disappointing that he did so on the basis of a dubious tax argument that had been uniformly rejected by every lower court that ruled on it...

[P]eople of all political persuasions have reason to be troubled by recent revelations suggesting that the Chief Justice initially intended to strike down the mandate and then changed his mind not because of legal considerations, but in order to protect his own and the Court’s reputation against attacks by those who would have been angered by a ruling striking down the mandate.

It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject.... But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution....

Sometimes, the Court must strike down laws that violate the Constitution even when doing so is highly unpopular and might subject the Court to far greater criticism than Roberts would have gotten for ruling against a mandate that the vast majority of the public actually wanted to see invalidated...

In this case, liberals may have been the beneficiaries of Roberts’ sensitivity to potential attacks on the Court’s reputation. In the future, it might be conservatives or others. Either way, courting popularity is not the proper function of a Supreme Court justice, at least not at the expense of his duty to the law.

UPDATE: The part of Roberts’ opinion discussing the Commerce Clause and Necessary and Proper Clause is not technically labeled the “opinion of the Court.” I should not have called it such. I was writing in a hurry last night, due in part to the blackout here in Arlington, VA, and did not check the phrasing carefully. However, I do still believe that part is controlling precedent for reasons I indicated here, and it is significant that the conclusion it reaches has the support of five justices.

UPDATE #2: I should add that although the four liberal justices did not join the part of Roberts’ opinion explaining why the Commerce Clause doesn’t authorize the mandate, they did join the part that says this conclusion is one of the holdings of the Court. That is significant for its precedential value, as I explain here.

Before the Supreme Court’s decision in NFIB v. Sebelius, many predicted the decision would influence public perceptions of the Court and its legitimacy. If a new Rasmussen poll is to believed, the decision has had some such effect already. From the poll summary:

A week ago, 36% said the court was doing a good or an excellent job. That’s down to 33% today. However, the big change is a rise in negative perceptions. Today, 28% say the Supreme Court is doing a poor job. That’s up 11 points over the past week.

The new Rasmussen Reports national telephone survey, conducted on Friday and Saturday following the court ruling, finds that 56% believe justices pursue their own political agenda rather than generally remain impartial. That’s up five points from a week ago. Just half as many — 27% — believe the justices remain impartial. . . .

Thirty-seven percent (37%) now believe the Supreme Court is too liberal, while 22% think it’s too conservative. A week ago, public opinion was much more evenly divided: 32% said it was too liberal and 25% said too conservative.

For details on the poll, see here. The usual caveats apply, and who knows whether this poll is indicative of how the Court or this decision will be viewed over time.