The Roberts Tango

Monday, August 13, 2012
Obama sliding into the base
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Taylor Jones

Chief Justice John Roberts’ decision on the Affordable Care Act (ACA) will continue to puzzle, bemuse, please, and outrage for years to come. He did well in his treatment of the Medicaid extension, where he understood the law’s subtle but powerful coercion. But on the crucial issue of the individual mandate and the taxing power, he sounded like a lawyer who is too clever by half. Without question, the chief justice came to his landmark decision by self-consciously marching to the beat of two drummers: judge and statesman. Let’s try to follow some of the steps of this Roberts tango.

Roberts takes on the role of umpire judge in his claims to be a lawyer, not a social engineer, so that his decisions have to do with questions of entitlement and government power and not with wisdom and politics. It may be that Supreme Court justices are not, as Roberts sometimes has said, just umpires who call balls and strikes, but this model of strict interpretation has long held a strong appeal for the chief justice. It affords him a way to resist the charge that he has led the court in usurping the functions of the democratic branches of government, making policy as he sees fit.

He also is keenly aware of his statesman’s role as the chief justice of the U.S. Supreme Court. He has two obvious role models. The first is Chief Justice Charles Evans Hughes, who, in NLRB v. Jones & Laughlin Steel Corp. (1937), essentially switched course at the eleventh hour to sustain the constitutionality of the National Labor Relations Act under a reading of the commerce clause that increased the size of the federal government a hundredfold (or more). The second is Chief Justice Earl Warren, who led a unanimous court in holding that segregated institutions had “no place” under the equal-protection clause in the decision for Brown v. Board of Education (1954).

There are differences between these two notable cases. Jones & Laughlin, decided by a 5–4 majority, upheld a novel exercise of congressional power by allowing regulation of all manufacturing activity that previously had fallen outside the scope of the federal government. The outcome was widely championed by the liberal intelligentsia as the “switch in time that saved nine.” They were thrilled to win by one vote, to say the least. In Brown, by contrast, the court unanimously struck down established Southern practices of segregation and anticipated a blizzard of opposition. Warren was intent on getting unanimity to legitimate his decision.

Roberts seems to have located the Affordable Care Act case in the tradition of Jones & Laughlin, not Brown, and thus was willing to run with a 5–4 decision. Clearly he thought of himself as the statesman in this case. But the ruling raises questions about whether he can also be the conscientious umpire. The fallout from the case suggests he will long be assailed as one who plays fast and loose with the law.

Sometimes the need to play umpire is inconsistent with the need to mend relationships with the coordinate branches of government. That tension is evident in every portion of the chief justice’s dense decision.


At the outset of the opinion, Chief Justice Roberts asked whether the court could hear the case. The Anti-Injunction Act provides that the court does not have the power to enjoin a tax until that tax is collected. Congress in fact chose the word penalty, not tax, to describe the nature of the individual health care mandate. The chief justice regarded that verbal ploy as reason enough to say that the court could indeed entertain the challenge to the statute prior to the time of collection. So far it looked like the umpire in chief calling balls and strikes. Congress is forced to live by the choices that it makes.

But not for long. The chief justice then went on to say that what mattered for the purposes of the Constitution was not what Congress said, but what it did. The ACA imposed a “(r)equirement to maintain minimum essential coverage.” The ACA stipulates, as Roberts quoted, that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage” and that if anyone failed to meet that requirement “there is hereby imposed . . . a penalty.” Having rejected arguments for the mandate based on the interstate-commerce clause, Roberts had to find refuge in the power of Congress to lay and collect taxes.

Obama sliding into the base

Here the chief justice began to look less like an umpire calling balls and strikes and more like a batter seeking to execute a suicide squeeze. Labels cease to matter. The chief justice thus ignored the wide range of institutional safeguards that govern when taxes may be imposed.

The Obama administration had gone out of its way to deny having any plan to impose taxes, in part because of its no-new-taxes pledge and in part to get a favorable route for the Act through Congress. That route did not run through the House of Representatives, where all tax measures must originate. Such procedural steps are part of the Constitution. Umpires usually try to use consistent definitions; otherwise, as they are well aware, there is a risk of unprincipled equivocation. The political actor, by contrast, can first pick this definition and then that one to suit his convenience.

Chief Justice Roberts is sensitive to accusations that he has led the court in usurping the functions of the democratic branches of government.

But it gets worse. The basic theory of taxation is that we are all in it together: taxes are generally imposed to create some form of public good, to which all citizens should be required to contribute. One minimum condition for a tax is that the taxes come from all segments of the population.

The moment we allow a tax targeted just at those people who wish to opt out of the insurance mandate because they are getting a raw deal from the government, the power of selective abuse increases. We allow a majority of the population to impose a so-called tax on whatever subgroup of the population it wishes to tax for the benefit of another. The chief justice as statesman has collided with the chief justice as umpire.


So long as Congress has only limited powers of taxation, no one should be allowed to use verbal legerdemain to expand those powers. Nor should Congress have the power to determine the constitutionality of its own legislation by altering the mechanism for its collection.

Nothing in the fancy footwork surrounding the decision displaces the inference that when Congress repeatedly used the word penalty to describe the mandate, it meant what it said and it said what it meant. The best way to read the mandate is as a fine imposed on individuals who choose not to perform an act required as a matter of positive law. No wonder no lower court accepted the ad hoc argument that the mandate could be rescued by christening it a tax.

Roberts’ constitutional case was weak. Historically, the taxing power has been read in tandem with the commerce power. The actual words of the spending power are very narrow: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”

The original intuition was that the general welfare of the United States comprised only standard public goods, leaving all welfare assistance for the needy to the states. That position obviously was abandoned. But in its place came the rule that the taxation power could never be used as an indirect form of regulation that Congress could not impose directly. This relies on a simple economic insight: taxation and regulation are close substitutes, so a limitation on one matters little if the other power is still available. There is no practical difference between ordering an action, and taxing or fining people who don’t do that same thing. Chief Justice Roberts failed to confront this connection.

Thus the entire edifice underlying the Affordable Care Act on this critical mandate continues to rest on a constitutional house of cards. If the legislation fails under the commerce clause, there is no reason to resurrect it by engaging in extravagant machinations with the words tax and penalty. No umpire would settle for such a shaky result. No statesman should either.