SCOTUS Makes a Smart Health Care Decision, But Not the Right One

The Supreme Court's ruling was tactically savvy for several reasons, but I'm still not convinced of the soundness of the overall positions that are being taken. 

As many have written (here is a great one paragraph summary of what the ruling said), the Court found that the individual mandate requiring everyone to purchase health care insurance was not upheld on the grounds of Congress' commerce clause authority. However, the Court did rule that the taxing power of Congress was sufficient to uphold the law. 

This is an interesting aspect of the decision in itself because it shows the Court's savvy attempt to compromise. Ultimately, I think that it may be an unstable compromise that future cases will put pressure on, but for now, the justices ar looking out for the legitimacy of the Court. 

The decision was 5-4 and it was joined not by the perennial Supreme Court fulcrum, Justice Kennedy, but by Chief Justice John Roberts. This is significant because Roberts is generally believed to be more conservative than Kennedy. He's also a George W. Bush appointee, and so more starkly represents the recent incarnation of the Republican Party. Thus, his ruling will make it harder for Republicans to decry the ruling as politically motivated (though they may still decry it as wrong, and it may well be). Thus, the effect of Roberts' ruling is to force those who don't like it to find real arguments than cynically crying politics. This is better for our democracy. 

Also, the ruling itself was a compromise. Some justices, like Justice Ginsburg believed that the individual mandate was supported both by Congress's taxing power and the commerce clause. Roberts however, as I mentioned above, believed that the commerce clause was not sufficiently powerful to justify the law and that only Congress's taxing power was enough. Why is this significant? How would the choice of jutification effect future law-making? 

The significance is in terms of freedom. Roberts, in his opinion (read the whole thing here), notes that allowing Congress to pass a mandate under the commerce clause allows Congress to achieve that result in the most punitive manner. Congress could have, if the commerce clause was sufficient to pass the individual mandate, put people in jail straightaway if they were found to be without insurance. Here's Roberts (pg. 43 of the opinion): 

"Third, although the breadth of Congress's power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys maybe subjected to criminal sanctions." 

This is a sound point. Under the current law, you only face a civil penalty if you don't pay. And if you can't, you'll be in trouble (and you might have your wages garnished or whatever), but you will not be put in jail, which is a significant difference in liberty. Of course, if you push it far enough, you might end up in jail if you don't pay the fee for not having your health care insurance, but the path is very different than would be the case if Congress could criminalize not having health insurance. 

There's even an interesting extension for Robert's insistence that the government cannot force people to buy something. If the government can force people to buy a product then it can benefit industries in ways that are not as easily monitored by the democratic process. If the government subsidizes plasma TV manufacturers, then the money can be tracked if necessary and investigations into federal employees can happen if things go wrong (see, Solyndra), but if individual people are forced to buy plasma TV's, then there's not an institution to hold accountable. This would be a dangerous new power for the federal government because it would make economically underhanded laws easier to keep in place. 

The funny thing though is that even though I really like Roberts' attempted philosophy in this case, the argument for the taxing power seems to founder at a crucial point, namely, that the founders restricted direct taxes on people (direct taxes being a tax on someone that they cannot avoid. It's not a tax in virtue of anything people do, but a tax in virtue of merely existing) in Article 1, Section 9 (an exception was later made to this clause for the income tax).

Early interpretations of Article 1, Section 9 restricted direct tax to a head tax or a tax on land, and so Roberts happily points out that the individual mandate penalty is not a tax on land or persons and so it must escape the prohibition against such taxes. But then he doubles back and worries that the tax would effectively be on everyone and so would likely be constitutionally offensive for the same reason he thought the provision violated the commerce clause. 

He writes (pg. 41), "If it is troubling to interpret the Commerce Clauseas authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something." 

He then tries to defend his own argument from himself, but fails to win. He says that individual people have no right to be protected from a tax on merely existing, but to argue that, he points to the fact that direct taxes are allowed as a head tax. But that's not a good justification, because the riskiness of these types of taxes is exactly why they were reserved for special situations. Direct taxes were treated very seriously by the framers, and so to cite the limited clause in which they were contemplated as a justificaiotn for using them outside of that special situation fails in my mind. 

In fact, as I read more of the decision, I found myself becoming more convinced by the argument that as a constitutional matter, it's not the taxing power that justifies the law but the commerce clause after all. Ginsburg's part dissent is pretty persuasive on this actually, but since I didn't have time to think through it, I'll pass on without comment. 

A final point. What is so interesting is that in this case, so many complicated notions come into play all at once. The difference between action and inaction, and the trickiness that insurance as opposed to concrete goods introduces both prevent obvious answers to certain quetions. Throughout the opinion there is reference to cars and broccoli, but the analogies are all likely to be, in the final analysis, flawed because insurance in a market at risk of free-riding is so different from ordinary markets. We just have not dealt with this complex of issues, as a society, before. This is the deep reason for why the ruling is generating so much interest: it is a fork in our country's political philosophy.