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Repealing Obamacare: The Roberts Irony

Obamacare opponents dismayed about John Roberts’s opinion in the Supreme Court case that upheld Obamacare’s individual mandate — and therefore Obamacare itself — may have occasion to do a rethink. The ruling, it turns out, may not be the saving grace that Obamacare supporters thought it was.  Indeed, the very opinion that Obamacare supporters praise may, ironically, be the opinion that kills Obamacare for good.

Recall that the Supremes did, in fact, rule the individual mandate unconstitutional as a penalty. Recall, also, their concomitant ruling that the Constitution’s Commerce Clause did not empower the federal government to force every American to purchase a product in the private market by virtue simply of being alive.

Nevertheless, according to the Roberts opinion, the individual mandate survived its constitutional challenge as a tax. More important, according to Roberts, it survived only as a tax.

It also, ironically, precisely because it is a tax that the individual mandate is unconstitutional, as the Cato Institute’s Michael F. Cannon notes in his article in today’s Los Angeles Times (emphasis mine):

The Pacific Legal Foundation is challenging the individual mandate, which originated in the Senate, even though the Constitution requires that tax measures originate in the House.

Note also the language of the 16th Amendment (emphasis mine):

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

In other words, the 16th Amendment carves out a special exemption from the Constitution’s requirement that taxes “shall be apportioned among the several States.” For any tax that is not an income tax, the Constitution’s original language applies and thus, per Cannon:

The mandate is also vulnerable because it is not uniform across all states.

One hopes that some of the anti-Obamacare states will take up the Pacific Legal Foundation’s argument and file their own challenges, or at least file amicus curiae briefs in the Foundation’s case.

  1. Sumomitch

    I wouldn’t hold out much hope of them prevailing on either claim. The federal courts have generally been unwilling to enforce the procedural requirements of the Article I provisions, under the “political question/standing” doctrines. For other reasons, I was interested in the fate of a similar challenge to the 1982 TEFRA: the courts recognized that in the ordinary course of negotiating and reconciling laws, the House and Senate play many games, particularly with tax/revenue generating parts of the law, and basically took the position that federal courts are not an appropriate referee of such games.

    As to the requirement that direct tax be apportioned on a per capita (by the last census), as you note the Sixteenth Amendment makes an exception to that requirement for income taxes. Wouldn’t the Justice Dept. argue that since the requirement is enforced under the income tax code, by the IRS, as part of the determination of your income tax payments, if it is a “tax,” it perforce must be an income tax. (And wasn’t this argument made in the dissent in the SCOTUS Obamacare case, to no apparent effect on Robert’s ruling upholding the law?)

  2. Mike H

    Someone must explain this to me. If this was true, and it is kind of obvious, why wouldn’t the SCOTUS conclude it the last time around? Must it really be presented to them directly? They seem to make some pretty tangential rulings in other cases. What makes you think they wouldn’t have thought through this already?

    Why didn’t our lawyer make this argument? “If you decide it’s a tax, then you MUST find it unconstitutional.”

  3. Mendel

    So, John Roberts declared the individual mandate a tax, but also said the law was constitutional under those circumstances, without mentioning the House of Representatives requirement.  Does his blanket declaration of “constitutional” mean that this new argument is moot?

    Or, if Roberts were to strike Obamacare down based on this new complaint, would he essentially have to admit that his own judgment from one year ago was incomplete and/or erroneous?  How likely is it that the Chief Justice will strike down his own decision?

  4. Edmund Alexander

    I’m glad to see they’re finally pursuing this line.  The idea that you can take a bill from the House, change 100% of its content, and declare it originated in the House is such a flagrant violation of the rule of law I’m surprised it’s lasted this long.

  5. Butters

    interesting, would like to hear Epstein/Yoo’s take on this challenge

  6. jmelvin

    I think I posited this exact line of thinking (that the tax didn’t originate in the House and thus would fall at later challenge) when the decision came down this past summer.  I’ll be quite interested to see what becomes of this.

  7. KC Mulville

    Live by technicality, die by technicality.

  8. Paul L.

    Makes perfect sense, but I’m not hopeful about it.

    The NYT will run a bunch of op-eds saying the reputation of the Supreme Court will be damaged if Obamacare is thrown out because of such a “technicality.” Roberts will then concoct some justification for not striking it down.

  9. Egg_Shen

    There’s no way this flies, regardless of its obvious correctness.

    The Right is a party of means as well as ends. We believe (most of us) that rules are meant to be followed even if they are horrible rules.

    The Left is a party of ends. For the most part, they don’t care about what means are used to achieve those ends. There is no such thing as a technicality when it comes to left wing policy as long as the goal is met.

  10. SunnyOptimism

    If I remember correctly, the Senate’s version of the ACA bill was actually inserted into a farm bill that was gutted by the Rules Committee of the House and passed out of the House to the Senate.  Then the “ping-pong” procedure occurred in order to pass it out of the Senate (by simple majority) and back to the House.  Because the “shell” bill originated in the House, then the ACA “originated” there as well.

    As we all know (or maybe we don’t), the SCOTUS has been loathe to ever get involved in judging the Constitutionality of internal House or Senate rules and procedures.  Article 1 Section 5 Clause 2 reads -

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

    Coupled with the concept of Separation of Powers, I don’t ever see the SCOTUS wanting to get into this dog-fight as the President could make the claim that the Supreme Court’s verdict is nullified by Article 1 Sec 5 Clause 2  thus leading us to a Constitutional crisis between the Executive and Judicial branches.

  11. Misthiocracy

    This isn’t a new idea. These arguments were made all across the Internet minutes after the Supreme Court made its ruling. I myself started a couple of pretty lengthy threads on Ricochet about this argument.

    So how come nobody’s acted upon them yet?

    How come only now is a semi-mainstream organization like Cato popularizing the argument?

  12. Skyler

    But the problem is not just the individual mandate.  The problem is the rest of the 2000 pages of really bad laws that will have untold effects on our freedoms and the economy.  

    Roberts doesn’t get off the hook for having abandoned his  responsibility to protect the Constitution and to balance the two other branches of government from over reaching power.  He agreed to their over reach.

    I find his decision more repugnant than if he had been like Ginsburg and had simply agreed with the law rather than disagreeing and then refusing to stand by his countrymen’s defense by finding it unconstitutional and then striking the entire law down.

  13. ConservativeWanderer
    Michael Hinton: Someone must explain this to me. If this was true, and it is kind of obvious, why wouldn’t the SCOTUS conclude it the last time around? Must it really be presented to them directly? They seem to make some pretty tangential rulings in other cases. What makes you think they wouldn’t have thought through this already? · 1 hour ago

    Edited 1 hour ago

    Exactly.

    If Roberts was going to rule it unconstitutional on those grounds, he would have already.

    Bottom line: John Roberts thinks it’s constitutional, and will therefore not vote to strike it down. We’re stuck with this monstrosity.

    Welcome to Obamamerica, thanks to supposedly conservative Chief Justice John Roberts.

  14. Gene Schwimmer, Guest Contributor
    C
    Jeff: The ACA fails presentement, fails common sense.

    And Roberts is really, really bad man. · 3 hours ago

    Have to disagree about Roberts.  I read the opinion and, however reluctantly, agreed with his reasoning. I would have to reread the oral arguments to be sure, but I believe that the government claimed that the mandate was a tax.  If it did, then it’s unfortunate that the states’ lawyer (nor any of the countless amicas briefs?) did not argue that if the mandate is a tax, then it’s unconstitutional because it originated in the Senate, not the House.

    What happens next, I can’t predict, but given the split in the original ACA decision, I would guess that the four conservative justices who wanted to strike down the law would supply the four votes needed to hear the Pacific Legal Foundation case – with, perhaps, Roberts supplying a fifth – perhaps after kicking himself for not checking the ACA’s legislative history in the first place.  And the logic, at least to this non-lawyer, is so airtight – either the mandate originated in the House or it didn’t – that the Foundations odds of prevailing, to me, look pretty good.

  15. Gene Schwimmer, Guest Contributor
    C
    Sumomitch: I wouldn’t hold out much hope of them prevailing on either claim. The federal courts have generally been unwilling to enforce the procedural requirements of the Article I provisions, under the “political question/standing” doctrines.  [F]ederal courts are not an appropriate referee of such games.

    Wouldn’t the Justice Dept. argue that since the requirement is enforced under the income tax code, by the IRS. · 3 hours ago

    The federal courts are not the Supreme Court.  The Supremes decide constitutionality and this is a clear case, with no gray areas for the Court to interpret. If the plaintiff argues that a tax is unconstitutional because it did not originate in the House, as the Constitution unambiguously requires, then the only question is whether it originated in the House or not.

    The government should not put much hope in claiming that the “tax” is an income tax. That the IRS collects the money, as it collects the voluntary contribution for funding presidential campaigns does not make it an income tax. Were the Court to accept that argument, then Congress could transform any tax into an income tax simply by tasking the IRS with collecting the money.

  16. Gene Schwimmer, Guest Contributor
    C
    Michael Hinton: Someone must explain this to me. If this was true, and it is kind of obvious, why wouldn’t the SCOTUS conclude it the last time around? Must it really be presented to them directly? They seem to make some pretty tangential rulings in other cases. What makes you think they wouldn’t have thought through this already?

    Why didn’t our lawyer make this argument? “If you decide it’s a tax, then you MUST find it unconstitutional.” · 4 hours ago

    Edited 4 hours ago

    Given how much he must have been paid, that’s a very good question.  But I think that, like most of us, he was surprised by the Roberts opinion and never even imagined, let alone anticipated, it.

    And indeed, the jurisprudence underlying the Roberts opinion is unique – enough so that I’m thinking of writing a separate post on it.

  17. Gene Schwimmer, Guest Contributor
    C
    Mendel: So, John Roberts declared the individual mandate a tax, but also said the law was constitutional under those circumstances, without mentioning the House of Representatives requirement.  Does his blanket declaration of “constitutional” mean that this new argument is moot?

    Or, if Roberts were to strike Obamacare down based on this new complaint, would he essentially have to admit that his own judgment from one year ago was incomplete and/or erroneous?  How likely is it that the Chief Justice will strike down his own decision? · 4 hours ago

    I think some of us are being too hard on Roberts.  He’s a judge.  He probably read the mandate and ruled on the text, without looking at which House enacted it first.

    As for being “incomplete and/or erroneous,” one of the more dismaying parts of the oral arguments, to me, was some of the liberal justices’  attempts to rescue the government’s lawyer by suggesting alternative arguments whenever his own argument was weak. Should Roberts have done the same for plaintiffs’ lawyer?

    Anyone wanting the Supremes to reverse Roe v. Wade had better hope that the Supremes can and will rehear a case if someone raises a new argument.

  18. Gene Schwimmer, Guest Contributor
    C
    Ningrim: interesting, would like to hear Epstein/Yoo’s take on this challenge · 3 hours ago

    Me, too!  Are you reading this, Mr. Epstein?  Mr. Yoo?  Could one or both of you weigh in with your own posts?  Could someone reading this contact them?  Troy?

  19. Gene Schwimmer, Guest Contributor
    C
    SunnyOptimism: If I remember correctly, the Senate’s version of the ACA bill was actually inserted into a farm bill that was gutted by the Rules Committee of the House and passed out of the House to the Senate.  Then the “ping-pong” procedure occurred in order to pass it out of the Senate (by simple majority) and back to the House.  Because the “shell” bill originated in the House, then the ACA “originated” there as well.

    Interesting argument, but a farm bill is not a tax bill.  And if the House “gutted” that bill and sent an empty shell, then the individual mandate/tax was not in it.

    The problem with this argument – and why (though, of course, I could be wrong) I doubt the Supreme Court, or at least the conservative justices, would reject it is because accepting that ruling would not be a “one-off” applied only to Obamacare.  Once that door is open, the Senate could use the same maneuver on any tax bill and essentially “gut” the constitutional requirement that tax bills originate in the House.  Indeed, that was the logic by which the Court rejected the government’s Commerce Clause argument.

  20. Gene Schwimmer, Guest Contributor
    C
    Misthiocracy: This isn’t a new idea. These arguments were made all across the Internet minutes after the Supreme Court made its ruling. I myself started a couple of pretty lengthy threads on Ricochet about this argument.

    So how come nobody’s acted upon them yet?

    How come only now is a semi-mainstream organization like Cato popularizing the argument? · 2 hours ago

    Arguments are irrelevant; someone needs to bring a case.  The Pacific Legal Foundation has.  But remember how long it took the states’ ACA case to reach the Supreme Court and then we had to wait months for a decision.  The case will get there, eventually, probably have to be heard in a lower court, first.

    The more important question is whether the Supremes grant certiorari.  If they do and reject the Foundation’s argument, I will look forward to reading their reasoning.

    But again, I’m not a lawyer.  I really, really would like Epstein/Yoo to weigh in on this.