Preserving Obamacare with a prescription of common sense

It was a busy week for the Supreme Court, and a very good one for liberals.

But let’s not focus on human rights, including the profound and welcome decision to recognize a right to same-sex marriage. Instead let’s discuss statutory interpretation!

In the Affordable Care Act (Obamacare) case, Kingv. Burwell, the Court had to decide whether a provision of the statute, which allowed tax credits – essential for the overall plan’s viability – to be paid to a taxpayer who had purchased insurance through “an Exchange established by the State,” actually authorized tax credits not only for taxpayers in the states that did establish these Exchanges but also for taxpayers in the many states – a large majority – that did not. In those states, as the statute provided, the federal government had filled the void left by state inaction and established an Exchange itself.

So the precise statutory question was “does ‘Exchange established by the State’ mean “Exchange established either by the State or the federal government’”? It might seem obvious that the answer is "no" – the federal government is not a state. For Justice Scalia, the answer was obvious, and it was indeed "no." Scalia says that the Court's answer -- "yes" -- "is of course quite absurd, and the Court's 21 pages of explanation make it no less so." (Dissenting opinion at 1.) That's pretty sharp -- though not the sharpest language Scalia has ever used. 

Despite Scalia, six justices said "yes," in an opinion by Chief Justice Roberts. In fact the question wasn’t quite as obvious, even as a technical matter, as Justice Scalia believed. For example, as Roberts says, the statute “defines the term ‘Exchange’ to mean ‘an American Health Benefit Exchange established under section 18031.” Section 18031 is the section telling states to set up these exchanges, but the states weren’t obliged to do so, and another section, 18041, tells the Secretary of Health and Human Services to “establish and operate such Exchange” if the state doesn’t. Then, since “Exchange” is defined as an Exchange established under section 18031, and section 18041 tells the Secretary to establish “such Exchange,” actually the Secretary is being told to establish “an exchange … under section 18031,” which, again, is the section authorizing states to set up exchanges. So it’s possible to parse the language to say that the federal government has been instructed to set up state exchanges. (Majority opinion at 11-12.)

It turns out there are a number of anomalous sections like this. Perhaps the most striking is the one that says that all exchanges are to report to the IRS the information necessary for the calculation of each person’s tax credit – a provision hard to understand if in fact people who purchased insurance on federal exchanges couldn’t get any tax credits at all. (Majority opinion at 13-14.)

But the real point, I believe, is not these technicalities, though they help Chief Justice Roberts to establish that the statute has enough ambiguity to be open for interpretation. The real heart of the Court’s decision is evident in this penultimate paragraph:

            Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The relevant section] can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. (Majority opinion at 21.)

Roberts appears to believe that where the constitution does not set the courts at odds with the other branches of government, then the courts and those other branches are partners in governance. This is an old idea, dating back to the “legal process” school of the mid-twentieth century. It is by no means a charter for unchecked, freewheeling judicial rewriting of the statutes enacted by Congress; there will surely be many, many cases where the clarity of a statute’s words overwhelms arguments for reinterpretation that are less cogent than those in the Obamacare case.  

But this case does indeed create a precedent for the proposition that language by itself, however seemingly clear, should not be understood in a way that “destroys” what Congress meant to do. To this extent Scalia is clearly right: this case “will be cited by litigants endlessly,” though I don’t share his belief that the result will be “the confusion of honest jurisprudence.” (Dissenting opinion at 21.)

In fact the case is already not unique – this is at least the third decision Roberts has written or joined in the past two years in which the Supreme Court has departed from what arguably was the clear import of statutory words if read by themselves. The earliest  was Bond v. United States, decided in June 2014; there the Court decided, in an opinion written by Roberts, that a woman’s effort to cause a romantic rival to “develop an uncomfortable rash” by putting “two toxic chemicals” on the rival’s doorknob did not amount to the use of a “chemical weapon.”  The next was Yates v. United States, decided in February 2015, in which the Court held (though without a majority opinion) that a statute aimed at financial fraud, one of whose provisions punished the destruction of a “tangible object” with the goal of interfering with a federal investigation, did not cover the destruction of illegally-caught oversize fish.  The Supreme Court appears to be experiencing an epidemic of common sense!

These common-sense decisions reject an alternative approach that almost taunts Congress for its imprecisions. Instead, they tell us that we can, at least broadly, understand what Congress seeks – despite the skepticism with which some have come to greet this proposition. Just as clearly, they say that when we understand it we should support it (of course within the bounds of the constitution) even if the words Congress used don’t readily lend themselves to such a supportive reading. 

Thank goodness.

Affordable Care Act Part IV: When, if ever, does offering a state money amount to coercion?

After dealing with the commerce clause and the tax power, the Supreme Court in the Affordable Care Act case (available here) turned to the spending clause. (There can't be many cases that have addressed so many of the central federal powers under the Constitution.)

The text of the Constitution tells us that Congress can tax and spend for the “general welfare,” Art. I, § 8, cl. 1. Does that mean Congress can tax and spend on matters that it could not otherwise reach under the rest of its constitutional powers? The answer, the Supreme Court decided in United States v. Butler, 297 U.S. 1, 66 (1936), is yes. So Congress can raise money, and spend it, even on matters that otherwise would be the concern of the states rather than the national government. Moreover, as a general matter Congress can choose what it will spend on; that is, it can put conditions on what it spends, and if it proposes to provide money to states, it can require them to abide by such conditions.

But a year after Butler the Supreme Court suggested a limit on this authority, when it said, in Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937), that “[n]othing in the case suggests the exertion of a power akin to undue influence, if we assume that such a concept can ever be applied with fitness to the relations between state and nation.” That language is quite a bit short of a firm statement of a constitutional rule, and evidently no case until the health care decision ever found such coercion. Nevertheless, seven justices do find it here. That includes two of the court's liberals, Justices Breyer and Kagan, and their votes may have caused liberal observers a measure of the same disappointment conservatives have vitriolically expressed about Chief Justice Roberts.

What was the coercive aspect of the law? The statute provided for a dramatic expansion of Medicaid, which would now cover everyone under the age of 65 with an income up to 133 % of the federal poverty line. (Currently, Chief Justice Roberts writes, Medicaid covers “only certain discrete categories of needy individuals – pregnant women, children, needy families, the blind, the elderly, and the disabled…. There is no mandatory coverage for most childless adults, and the States typically do not offer any such coverage.” Moreover, states’ definitions of which families are “needy” typically draw the eligibility line well below the federal poverty level. Roberts at 45.) Medicaid is a program largely funded by the federal government, but operated by the states, and states can decline to have a Medicaid program within their borders. Arizona didn’t join the program till 16 years after federal law created it (opinion of Justice Ginsburg, at 59 n.26). States could also decline to take part in the expansion of Medicaid under the ACA, but if they did so then the statute authorized (though it didn't require) the Secretary of Health and Human Services to withhold from the state not only the new federal money that would have paid for the expansion but also the rest of the state's federal Medicaid funds. 42 U.S.C. § 1396c.

That's a big stick. But is it a "coercive" one?

One way to answer that is to consider whether Congress believed any states would choose not to participate in the Medicaid expansion. The answer seems to be no; state participation is an integral part of the ACA's effort to assure near-universal health coverage. But does this mean the statute is coercive or that it is attractive? After all, the ACA funds 100 % of all expansion costs through 2016, and after that “gradually decrease[] to a minimum of 90 percent.” (Roberts at 46.) What state concerned to support its people's health would want to resist such a sweet offer?

But it must be said (as the joint dissenters do, at 45) that Congress didn't just make an offer. It also added a penalty for rejecting the offer -- namely the risk of losing all current Medicaid funds, those already being disbursed by the state in existing health care arrangements. Moreover, existing federal Medicaid funds are major parts of many states' total budgets: between 10 and 15 % of the average state’s entire budget, according to Roberts (at 51); between 16 and 22 % of all total state expenditures, according to the joint dissenters (at 39 & n.14). Loss of this money would be extremely painful.

But suppose a state said "we want to run an industrial development fund with our medicaid money, and we're going to stop using those funds for health purposes." I don't think anyone would contend that the state was entitled to take the federal money and run. It is entirely legitimate, as a general matter, for Congress to say "we will spend only for X, not for Y." And that's true even though it means that the only way to get the money is for a state to use it on the programs Congress specifies. Even the joint dissenters (who are part of the majority in finding a violation of Congress’ spending clause powers) observe that “[w]hen Congress makes grants to the States, it customarily attaches conditions, and this Court has long held that the Constitution generally permits Congress to do this.” (Joint dissent at 31.)

What this points to is the proposition that what makes a financial penalty coercive is not its size per se, but its fairness. With this idea perhaps in mind (though I think not put in these term), the justices debate whether the Medicaid expansion is or is not sufficiently akin to the current Medicaid program that the expansion, and the penalties for declining it, fall within the existing law's specific declaration that Congress may enact changes at any time (42 U.S.C. § 1304). The justices seem to agree that some changes, and penalties, are covered by this provision, but they disagree about whether the very large changes wrought by the ACA were (with a majority saying they weren't).

But whether the changes were sufficiently predictable is not the whole of a fairness analysis. Congress can always change its laws, whether or not it reminds us of that in advance. Here, as Justice Ginsburg says (at pages 38 & 51 of her opinion), in theory it could have repealed "old Medicaid" and passed a brand new statute, "old and new Medicaid," and conditioned receipt of all Medicaid funds on compliance with the whole of the newly enacted law. Chief Justice Roberts responds that that would have been politically difficult (Roberts at 54 n.14); maybe so, but why does that matter -- either way -- to the measure of Congress' powers?

The justices finding a spending clause violation emphasize the idea that spending clause legislation is “in the nature of a contract” between the federal government and the states. (Roberts quotes this phrase from earlier precedents at 46; the joint dissenters use almost the same language at 33.) To my mind, however, this metaphor is quite imprecise. Congress may be setting the terms for contractual relations with the states, and it may (as cases have held) be essential that those terms be spelled out clearly. But Congress is also exercising its constitutional authority to tax and spend, and that authority should not be improperly undercut. Even with the aid of this metaphor, in any case, it remains a matter for debate just how much advance notice the states are fairly entitled to. In fact, Justice Ginsburg cites a Social Security case that invoked the same “right to repeal or amend” statutory provision that applied to Medicaid to say that “Congress put States on notice that the ‘Act created no contractual rights.’” (Ginsburg at 55, quoting Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 51-52 (1986).)

I think it is not possible to say what is unfair pressure without some baseline judgment about the respective roles of the federal and state governments. (This is an application of the insight of scholars considering the general concept of "coercion.") As Ginsburg says, the conservative joint dissenters (who are 4 of the 7 justices making up the majority on this point) at times seem to imply that a federal spending program is more likely to be coercive the larger it is: “On this logic, any federal spending program, sufficiently large and well-funded, would be unconstitutional.” (Ginsburg at 57 n.24.) This idea isn't absurd -- since state taxpayers fund the federal program, for a state to decline its share of the federal funds is a painful loss, more painful with each dollar. But it is also, from the national government's perspective, perverse – the more vigorously the government uses its spending power to achieve important purposes, the more it may run into constitutional trouble.

Meanwhile, it seems quite possible that for Justice Ginsburg essentially any spending amounts and conditions would be permissible so long as they aim at a legitimate governmental purpose and do not violate individuals' constitutional rights. She declares (at 59) that “[t]he coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation.” If that is right, then the coercion test is a matter for politicians in Congress and the White House, and not the business of the Courts. At one point the Supreme Court, some decades ago, did take the view that the federal system could be relied upon to protect the states – from which all federal officials come – but that is no longer the law.

Between these two possible extremes, Chief Justice Roberts, joined by Justices Breyer and Kagan, seem to be looking for a common sense understanding of coercion – though their “gun to the head” rhetoric (at 51) obscures this point. The amount of money matters; the degree of advance warning matters; the degree of states' dependence on the status quo (here, the existing Medicaid programs and their funding) matters. Perhaps the essence of their position is that states are entitled to a meaningful choice -- a standard that is a long ways from the idea that states might be entitled to an "unfettered" choice, but also quite a ways from the idea that Congress is entitled to unfettered discretion in the conditions it attaches to its money. As Roberts puts it, at 49:

In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own…. The States are separate and independent sovereigns. Sometimes they have to act like it.

In fact, even the joint dissenters speak in these terms, saying that the test of coercion is whether “States really have no choice” (joint dissent at 35), and affirming that “courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear” (at 38) – though there is room in such language for quite a spectrum of concrete results in future cases.

In all of this, we are a long ways from the nation of our past. Chief Justice Roberts calls the states “separate and independent sovereigns,” but the “sovereignty” of the 13 original states, in 1776 when we declared independence or in 1787 when the draft constitution was put before the states for ratification, has little connection to our world. But in our world there is room for debate about just how preeminent the national government should be, just how independent the states should be. The ACA decision seems to somewhat strengthen the hand of the states. I'm not sure that's the best thing to do, but I'm not unhappy with this aspect of the case -- which strikes me as a reasonable approach to a hard constitutional issue.

Affordable Care Act, Part III: When is a "penalty" actually a "tax"?

Is the “penalty” that people who fail to get health insurance must pay under the Affordable Care Act actually a “tax”?

Oddly enough, the Supreme Court’s answer is not that the Act did in fact create such a tax, but only that it is “fairly possible” to interpret the Act that way. Poor Mitt Romney – it’s easy to see how he could get confused, since the justices are in such disarray on the point too. Four of them (the “joint dissenters,” Scalia, Kennedy, Thomas and Alito) insist that the Act’s penalty is not a tax. Chief Justice Roberts, meanwhile, says that “[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance” (opinion at 31) – or in other words that it is a regulation of behavior, to be judged under the Commerce Clause’s authorization of the regulation of interstate commerce, and (for Roberts plus the joint dissenters) found invalid on that score.

But Roberts goes on to explore whether the law can reasonably be read instead as imposing a tax. As to this possibility, he tells us that “[t]he question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” (32). This inquiry is based on a longstanding principle of statutory interpretation, the “canon of constitutional avoidance,” which essentially tells courts that to avoid the risk of holding a federal statute unconstitutional, they should find a way, if one is “fairly possible,” to interpret the statute that avoids the reading – even if it was the more natural reading – that posed serious constitutional problems. Ultimately Roberts says (for himself alone) that the statute can be read this way, “[g]ranting the Act the full measure of deference owed to federal statutes” (id.), and the four liberals concur in the argument he then develops to justify this conclusion (33-44). In the course of that argument, Roberts observes that “[w]e see no insurmountable obstacle” to the interpretation being defended – hardly a vigorous declaration that it is in fact the most plausible reading! (38) So actually no one seems to think the likeliest reading of the law is as a tax.

For fans of statutory interpretation (such as me), this decision is an important instance of how much difference this form of legal reasoning can make. It is fair to say that Roberts has to work to find a way to read the law this way. After all, as he points out, the statute “states that individuals ‘shall’ maintain health insurance” (id.), language which certainly sounds like a mandate of behavior or, in other words, a regulation, with the breach of the regulation punished by a “penalty,” another word from the statute itself. In fact, the dissenters point out that the word “penalty” is used to describe this payment eighteen times in the law. (Joint dissent at 21.) They also cite repeated instances of the statute referring to the “requirement” of purchasing insurance. (Id. at 19.)

Moreover, and quite remarkably, the question of whether this payment was a “penalty” or a “tax” comes up twice in the case. The very first issue in the case is whether the Court can hear the case at all, given the existence of another statute called the Anti-Injunction Act, 26 U.S.C. § 7421(a), which forbids suits to challenge taxes before they are paid. The majority position ultimately is that for purposes of this statute, the payment is not a tax, but that for purposes of assessing its constitutionality, it is. The dissent says that this result “carries verbal wizardry too far, deep into the forbidden land of the sophists.” (Joint dissent at 28.)

How does Justice Roberts manage this? The answer is that the Anti-Injunction Act is simply another statute (rather than part of the Constitution); so long as doing so doesn’t somehow violate the Constitution, Congress can define terms in statutes any way it wants. If it doesn’t want the Affordable Care Act payment to count as a tax for purposes of the Anti-Injunction Act, that’s entirely Congress’ call. So here the majority is persuaded that Congress in the Affordable Care Act made clear that the “penalty” was not meant to count as a “tax” under the Anti-Injunction Act. (Roberts at 11-15.)

But for purposes of judging the constitutionality of the statute, the question of whether the payment is a “tax” is not entirely in Congress’ hands. For purposes of the Constitution, Chief Justice Roberts and the four liberals who join him on this point declare (and maintain that precedent supports them), Congress’ “choice of label” is not controlling. (Roberts at 33) Something may be a tax even though Congress called it a penalty, Roberts writes (34-35); and he adds, quoting an earlier case, that “the ‘question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.’” (39) But the fact that Congress’ labels aren’t controlling just means it’s possible that something labeled a “penalty” could be something else; we still need affirmative reasons for concluding that it is something else. What are those reasons?

One reason has to do with the definition of a penalty. Roberts writes that it is a central feature of “penalties” that they “‘mean punishment for an unlawful act or omission’” (37), and so in determining whether the required payment is a tax or a penalty it becomes important to determine whether the failure to buy health insurance (which triggers the duty to pay) is or isn’t unlawful. In other words, is the “individual mandate” not actually a “mandate” at all? Apparently that is indeed the case. As Roberts puts it (id.), “[w]hile the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.” Instead, it appears that “if someone chooses to pay rather than obtain health insurance they have fully complied with the law.” (As one of my sons pointed out to me, on this reading of the law the "penalty" for not buying health insurance is the equivalent of the baseball "luxury tax," the payment individual baseball teams must make to Major League Baseball when their payrolls grow too extravagant.) Congress, Roberts rather cogently points out, likely “did not think it was creating four million outlaws” (38) – the number of people predicted to choose to pay the penalty rather than buy insurance. (37)

(Here I have to add an aside on an odd feature of the case. My impression is that normally the canon of constitutional avoidance is brought to bear to determine what a statute commands or forbids. Here, the immediate question before the Court with respect to the penalty or tax payment is not what the statute directs people to do or not do as what to call those directions. People must pay money to the government if they do not buy health insurance, and nothing in the Court’s decision changes that. All that happens is that the Court determines that these payments can be interpreted as “taxes” for purposes of the Constitution. But when the Court bolsters that conclusion by arguing that the statute does not actually mandate that people purchase health insurance, it does affect the meaning of the statute in a somewhat concrete way. We now know that those who do not buy health insurance are not lawbreakers. If the duty to buy health insurance was a legal mandate, then failure to comply would have been a violation of the law – and it’s of some importance to people to know that they are, or are not, “lawbreakers.” But one last odd feature: though Roberts seems to view the question of whether it is lawful not to buy health insurance as an important point, he discusses it in somewhat tentative language. For instance, he writes, referring to the large number of people who it is predicted will pay the tax rather than buy health insurance: “That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws.” (37-38) I think one can rely on this case as firm legal authority for the proposition that those who don’t purchase health insurance are not lawbreakers – but the Court’s language on the point is a shade short of absolute. )

Roberts is able to invoke several other arguments (not all of which I’ll retrace here) to support his conclusion that the payment is actually a tax. For one thing, the “penalty” – which does have one other statutory name, the “shared responsibility payment” (33) – is collected through the income tax system. Interestingly, the IRS is barred from using its heaviest enforcement weapons, such as criminal prosecution, to collect it. (7-8) For another, the penalty is predicted to generate quite a lot of money, $4 billion by 2017, as taxes are supposed to. (33) Moreover, the penalty amount is decidedly less than the cost the penalized person would have incurred in purchasing the insurance – suggesting that it’s not much of a penalty, and therefore that it can be read as not being a penalty in the first place. (35) As already mentioned, “it is estimated that four million people each year will choose to pay the IRS rather than buy insurance.” (37) Roberts acknowledges that this tax is certainly meant to affect behavior (that is, to encourage people to buy health insurance), but “taxes that seek to influence conduct are nothing new” (36). At some point, a tax can be so punitive that it can’t any longer be upheld as a tax, but Roberts is confident that this tax doesn’t cross that line (43) – and the large number of people who apparently are prepared to pay the penalty (oops, the tax) seems to support that conclusion. (43)  

To all of this the joint dissenters respond emphatically. They write that (joint dissent at 18):

[W]e have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power – even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

And, they say, this payment is “unquestionably” “imposed for violation of the law. Citing the statute’s many references to the “requirement” of purchasing insurance and the “penalty” for not doing so, they write (at 21):

[W]e have never – never – treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.”

These “never’s” may be overstated, by the way. Roberts emphasizes one case “in particular” that did interpret a payment, labeled by statute as a “penalty,” to actually be a “tax.” That earlier decision was not about the constitutional character of the payment but rather about its status under the bankruptcy statute – but it’s not clear why Congress’ label could be overridden for purposes of another statute but not for purposes of understanding the nature of the payment under the Constitution. (Roberts at 35 n.7; the joint dissenters respond in their opinion at 17 n.5.)

In any event, based on precedent and other considerations, the dissenters conclude that “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” (Joint dissent at 24.) Judicial legislation is always problematic in our system, but here the dissenters see two special concerns as well. First, the last thing courts should be doing is imposing taxes, a matter of special democratic concern. Second, once the penalty is construed as a tax, a new constitutional problem has to be addressed – the constitution’s requirement in Art. I, § 9, cl. 4, that “direct taxes” be (as the dissenters put it) “apportioned among the States according to their population.” (25) This requirement blocked the institution of the federal income tax until the 16th amendment was passed to remove the barrier, but it remains part of the Constitution, and while it wouldn’t apply to income taxes, it could conceivably apply to this tax. To figure out what the impact of the “direct tax” provision would be, the dissenters say, is no easy matter, and that’s another reason not to adopt an interpretation of the statute that requires resolving this additional constitutional problem. In fact, the government didn’t even discuss the question in its opening brief – a further sign, the dissenters suggest, of how far anyone was from really believing this statute could be read as a tax law. (25-26) (The majority, however, is undaunted and concludes that this tax isn’t a direct tax. (Roberts at 40-41.))  

Are the dissenters right? Does the Supreme Court’s upholding of the Individual Mandate rest on a judicial rewrite of the statute? My impression is that the answer is – just barely – no. It’s clear that Congress meant to present the country with something called a “requirement” (to buy health insurance), supported by something called a “penalty” for failure to do so. Congress, in other words, “framed” the law as a mandate backed up by punishment. But the punishment is too mild – it’s cheaper to disobey this law than to obey it. And it is at least unclear that Congress meant to turn the millions of anticipated non-purchasers of health insurance into lawbreakers – rather than tax-owers. Perhaps the weakness of the penalty and the ambiguity surrounding the status of non-purchasers reflect how controversial the law was; the legislators barely passed the statute, and when they did so they passed a soft version. But that ambivalence marks the space within which more than one interpretation of what Congress had done became “fairly possible.”

Even so, Roberts himself seems only just persuaded. The gossip about his having switched sides at the last moment would confirm this, but I mean to emphasize more the hesitation in the words he wrote on behalf of himself and the four liberals. They find “no insurmountable obstacle” to their decision. Roberts, for himself, says he reaches the decision “[g]ranting the Act the full measure of deference owed to federal statutes.” The canon of constitutional avoidance is a quite venerable technique of statutory interpretation, and is sometimes employed quite dramatically, but I suspect that this is one of the more aggressive acts of interpretive avoidance on record.

And what justifies that? Roberts’ answer, which I’ve quoted already a couple of times, is that he is “[g]ranting the Act the full measure of deference owed to federal statutes.” One translation of that phrase is that he is deftly avoiding a confrontation with the President and potential injury to the Supreme Court’s standing in the country – a legitimate concern for the justices, as I’ve already argued in my first post on this case. But as a matter of legal argument, Roberts is harking back to an old presumption, perhaps not so much acknowledged in recent decades, that federal statutes are constitutional. He writes, quoting a case from the 1880s, that “‘Proper respect for a co-ordinate branch of the government’ requires that we strike down an Act of Congress only if ‘the lack of constitutional authority to pass [the] Act in question is clearly demonstrated.’” (Roberts at 6, writing only for himself). This presumption is certainly rebuttable, but it rests on an important premise – namely that members of Congress and the President, who together make our statutes, are acting with fidelity to the Constitution. Maybe not, of course, but as a starting principle I think this idea has a lot to recommend it. If that is one’s starting point, then it makes sense to look, and even to look hard, for ways to square what Congress and the President have done with the Constitution’s commands. If the price of upholding their work is to reread it, even dramatically, that is a lesser price than would be overturning it.

It’s certainly possible to argue that the canon of constitutional avoidance, employed this way, is actually an abuse of judicial authority. That’s roughly what the joint dissenters would say in this very case. Sometimes that may be so. But I think its use here, to preserve what Congress and the President did while still laying out new constitutional ground rules for the future, was justified, and wise.

Why did Chief Justice Roberts vote to affirm (most of) the Affordable Care Act?

A first reaction to the Supreme Court’s Affordable Care Act decision (National Federation of Independent Business v. Sebelius, decided June 28, 2012, and available at the Supreme Court's website):

Few people thought Chief Justice Roberts would supply the fifth vote to keep President Obama’s health care law on the books. What should we make of the fact that he did?

One possibility is, of course, that he simply voted his convictions about the important issues of constitutional law the case presented. He is committed, then, to finding limits on Congress’ power under the constitution's commerce clause and spending clause (and on the spending clause issue he does cut back on what the statute can do), but still he accepts that Congress’ authority under the tax power is very broad. He also  honors in full the rule of statutory interpretation that says statutes should be interpreted, if fairly possible, so as to be constitutional rather than unconstitutional -- which in this case meant to discern that the law’s “penalty” for those who don’t purchase insurance was not a regulation, which would have been beyond Congress’ power under the commerce clause, but a tax, which was within Congress’ power to tax.

I have no ground for doubting that these are in fact Chief Justice Roberts’ beliefs. But suppose for a moment that they weren’t. Suppose that what actually happened was not that he voted his beliefs but that he came to the conclusion that for the Supreme Court to overturn the Affordable Care Act would deal a damaging blow to the Court itself by calling its reputation for impartial, nonpolitical judgment even more into question than is already the case. So, while carefully laying out his views on the Commerce and Spending Clauses, he found a way to extricate the Court from the logic of those conservative principles – through the convenient medium of a flexible use of statutory interpretation to turn the law into something it might not have been (and something which could be held constitutional after all).

Did he do this? I don’t know, and I don’t know that the interesting speculation about the possibility that Roberts changed his mind late in the game helps us to decide why he did so. If he changed course late, he could have done so either because of legal argument or political calculation.

But let’s assume that it was the latter. Was that bad? That is, was Roberts wrong to consider the institutional position of the Court when he decided how to vote? I would say not. I think that there are issues of fundamental human rights on which judges must say, “Fiat justitia et ruat caelum.” (I’ve been waiting since my high school Latin classes for a chance to use those words, which roughly mean “Let justice be done and the heavens fall” – although even judges today probably would put the point in English!) But the job of the Supreme Court is not only to do justice in individual cases, but also to build the law of the land over time, and actually for both of those tasks the Court must retain the trust of the people at least to a substantial extent. The Court has no army, as has been pointed out many, many times. Its ability to enforce its judgments depends on the cooperation of the other branches of government and on the people. So if Roberts felt that he should lay out constitutional principles but find a way not to apply them so as to overturn the central legislation of the Obama presidency, he was acting in a tradition that goes back at least to Chief Justice Marshall in Marbury v. Madison in 1803 – a decision that established the power of the courts to hold federal statutes unconstitutional and by doing so actually avoided a much graver confrontation with the Jefferson Administration.

But isn’t this just a form of stealth jurisprudence, a device to further Roberts’ long-term goal of shifting the law to the right while escaping sharp public scrutiny for what is subtly underway? Maybe. That’s a good reason to criticize Roberts’ views, if they deserve criticism (and I think many of them do). But I don’t think that it’s wrong in principle for judges to seek to change the interpretation of the constitution – they may be right or wrong in their interpretations, but the fact that they’re changing past interpretations isn’t what makes them either right or wrong. It’s just not possible to say that our constitutional law is or should be fixed and changeless (even if some of the current conservatives assert its supposed unchanging, original meaning as their basis for overturning what they see as the mistakes of recent decades). The law will change.

What stops legal change from being political change pure and simple isn’t easy to define (and some people may believe there really is no distinction). But I think part of what makes law something other than politics is that it proceeds, usually (there are important and valuable exceptions), in a deliberate and incremental way. If Roberts’ views continue to command support, there will for sure be more laws overturned in the future – but it is important that we come to that point along a path that gives weight to contrary convictions, that shifts slowly rather than avulsively from past decisions, and that gives us all more time to take stock. All of that will give us more reason to believe that we are in fact observing (to use a distinction Alexander Hamilton affirmed in The Federalist Papers) the application of judges’ “judgment” rather than merely their “will.” 

So: if Roberts was acting on the basis of institutional calculation as well as legal principle, was he engaged in manipulation or statesmanship? I'd pick the latter. But in a way the question isn't a good one, because in this context there is no absolute line between these two. Here, as perhaps in many other situations as well, some measure of calculation is an integral part of wisdom.