The Obamacare Decision: A Mixed Bag

The case that received more media attention and more consideration by the U.S. Supreme Court than any in recent history has been decided. The 5-4 decision upheld the “individual mandate,” the central feature of the Patient Protection and Affordable Care Act, i.e. “Obamacare.”

Although the decision, crafted by Chief Justice John Roberts, contains much “bad news,” there is some “good news” for those who favor limited government.

First, the good news: The court found that the individual mandate, that provision requiring Americans to purchase health insurance or pay a penalty to the U.S. government, could not be found constitutional under the Commerce Clause. In this portion of his opinion, Roberts helps erect a constitutional barrier to a further expansion of the clause:

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority …. People, for reasons of their own, often fail to do things that would be good for them or for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.

This holding and analysis is extremely important for future cases where Congress tries to cavalierly invoke the Commerce Clause as authority for expanding federal power. As the dissenters acknowledge, this part of the opinion keeps the Commerce Clause from becoming a “font of unlimited power.”

The bad news is that following his strong limited-government opening, Roberts strained—or so it seemed—to find another basis upon which to uphold the individual mandate, thus saving Obamacare from having its linchpin pulled out. By doing so, he furthered an uncontrolled and ill-conceived effort to move Americans toward a European-style welfare state. What was his basis for upholding the individual mandate?

In a flimsy and unconvincing argument, Roberts concluded that the individual mandate can be upheld under Congress’ power “to lay and collect taxes.” Here are Robert’s own words: “[T]he mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”

What’s wrong with this?

First, the word “mandate” does mean “an authoritative command.” To say that it does not amount to a command is to deny the plain meaning of the word. Secondly, Justice Roberts’ attempt at an analogy is flawed. Persons who buy gasoline or earn income are engaged in an activity which the government is permitted to tax. Persons who do not purchase medical insurance are not engaged in an activity. So there is no analogy between buying gas and being taxed and not buying medical insurance and being taxed.

Readers of Justice Roberts’ opinion must be surely scratching their heads here. Isn’t this the same justice who earlier, in the Commerce Clause portion of the opinion, pointed out that the government could not properly claim to regulate “inaction” by persons? Now, he contradicts himself by claiming that the government can tax “inaction.”

There are other problems with calling the individual mandate a taxing provision. Foremost among them is that Congress itself framed the requirement to purchase insurance as a “mandate” enforced by a “penalty” and not as a “tax.” The distinction is a crucial one because Justice Roberts is attempting to argue that the individual mandate is a taxing provision, which Congress enacted under its taxing power. If, instead, the individual mandate provision is exactly what it claims to be—a requirement that persons purchase health insurance with a penalty attached—then the provision is not a tax. What makes his verbal shenanigans even more puzzling is that Justice Roberts, elsewhere in the decision, emphasizes the importance of deferring to the intent of the legislature. But in this part of the decision he ignores the very language that Congress used to describe its action—mandate and penalty. In place of the words that Congress chose, he substitutes his own language. As the dissenters point out: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

Furthermore, Justice Roberts seems to minimize the coercive power inherent in “taxing” Americans who decide not to purchase health insurance. He says: “If a tax is properly paid, the Government has no power to compel or punish individuals subject to it.”

True, but, what will happen if the individuals refuse to pay the tax? Then they will necessarily have to be treated as any other taxpayers who refuse to pay—the full force of the federal government will be applied to collect the tax.

The point is that whether a “tax” or “penalty,” the exaction is a heavy burden on low- and middle-income Americans for a product that they may or may not want to “purchase.” The Congressional Budget Office projects that by 2017, tax or penalty revenues likely to be collected will total $4 billion annually. Also, the Court points out that by 2016 individuals making as little as $35,000 per year could be paying the government $60 per month under the law’s dictate.

In summary, Justice Roberts started out well by limiting the power of the federal government under the Commerce Clause. However, he finished poorly when he engaged in verbal contortions to save the hastily drawn healthcare legislation. In the process, however unwittingly, he preserved this blatant legislative attempt to extend the power of the federal behemoth into the private medical decisions of ordinary Americans.

Copyright 2012 The Center for Vision and Values



Dr. John A. Sparks is dean of the A. J. Calderwood School of Arts & Letters at Grove City College (Grove City, PA) where he teaches constitutional law and business law. A graduate of Grove City College and the University of Michigan Law School, he is a practicing member of the State Bar of Pennsylvania, a member of the State Bars of Michigan and Ohio, and a fellow with The Center for Vision & Values.

  • Michael Paterson-Seymour

    It is not uncommon for courts to prefer substance to form.  Thus, a sale of land, coupled with an option to repurchase it has been held to be a loan in security and requests in a will, addressed to a legatee, have been held to impose binding trusts.  Other examples abound.

    As to taxing inactivity, history is replete with poll-taxes and capitations, which are taxes on mere existence.  Similarly, many countries have imposed taxes on uncultivated or undeveloped land,  giving the owner the option of avoiding the tax by improving or selling it.

    Again, if the mandate is a mere tax, it could not, for example, be construed as an offence to incite others to pay the tax, rather than comply with the mandate, for by paying the tax, they do all that the law requires of them.

    • Adam_baum

       I find Michael Paterson-Seymour’s post rather unpersuasive and factually incorrect.
      of all, while courts may prefer “substance to form”, form is important,
      and cases are routinely decided on the basis of the presence of minor
      procedural defects. That’s the essence of due process of law-that the
      procedure and form are important elements of lawfulness often as-or even
      more-important than the substance of the action itself. For example, I
      would hope (but am not at all confident) that a hypothetical bill passed
      by both houses and signed by the President would be declared unlawful
      and constitutional if that bill was first introduced in the Senate when
      it met the requirements of bills constitutionally mandated to begin in
      the house-even if it were perfect in every other respect.

      although it is true that “history is replete with poll-taxes and
      capitations”, historical existence does not make something lawful or
      desirable. History is replete with actions that, upon historical
      reflection, are found to be egregious breaches against justice and human
      dignity. History is full of slavery, but we wouldn’t cite its existence
      as a justification for the mandate, even though both are compulsions
      against an individual to benefit a third party.
      assertion that poll-taxes and capitations are taxes “on mere existence”
      is patently incorrect.  A poll is not a tax on inactivity, but the
      activity of voting (and as an aside, not a compelling defense, given the
      fact that such a tax was made unconstitutional by the Twenty-fourth
      Amendment and the 1966 case of Harper v. Virginia Board of Elections) 
      An undeveloped land tax is actually a regressive property tax, and its
      existence in other nations doesn’t make it constitutional or lawful
      for this sentence “Again, if the mandate is a mere tax, it could not,
      for example, be construed as an offence to incite others to pay the tax,
      rather than comply with the mandate, for by paying the tax, they do all
      that the law requires of them.” This is so confused as to make its
      meaning unclear. 
      you really want a historical antecedent to this “tax”, it is a modern
      jizya or the tax enacted on non-Muslims on non-Muslims in some Islamic
      jurisdictions, a naked form of aggression. 
      happened here was the Roberts joined with four individuals in rewriting
      a law to provide for its constitutionality under an interpretation of
      that authority that is tortured and expansive-and fraught with nothing
      but the power to render citizens into subjects.
      may not burn in hell for this grossly deficient exercise of temporal
      judgment, but as long as freedom loving people survive, he will be
      forever mentioned with Roger Taney, even if, as its been speculated his
      decision to join the minority was motivated by a desire to maintain the
      position of the Courts-of course that would mean he subordinated a legal
      judgment to political considerations-and was therefore derelict in his
      should be noted that the Court’s power of judicial review is not based
      upon a clear enumeration of authority contained in the Constitutional,
      but the 1803 Marbury v. Madison decision when, for political purposes
      and drawing on English law, then Chief Justice John Marshall (who is
      somewhat of a hero to Roberts) arrogated this power. It continues to
      exist only through deference-which may be why Attorney General Eric
      Holder was recently required to affirm it to a Federal Court.
      recent years, it has been metamorphosed into a form of judicial
      supremacy.  Decisions such as this one, Roe v. Wade, Kelo v. New London
      all cry for an extensive rethought of the power and insularity of the
      judiciary, not by lawyers, but by we the people. The problem is that so
      many of our fellow citizens are so compromised by ignorance, imprudence
      or dependency.
      ironic thing about this decision that instead of enhancing the
      reputation of the Court, is that it has merely served to remind us of
      the truth of the quote attributed to Samuel Johnson “the law is an *ss”.
      show more

  • Pingback: The Obamacare Decision: A Mixed Bag | Catholic Canada()

  • Guest

    Chuckle!  Your description of taxes on inactivity as “taxes on mere existence” hadn’t occurred to me.  Point taken!

    As several family members have lived and worked in the US and Australia over the past decade, we’re in a position to compare the medical treatment we received in both countries.  The Australian system is a combination of private health insurance and government-subsidized services. 

    I don’t know if Dr Sparks would categorize Australia as “a European-style welfare state”, but I do know the Australian system has worked far better for our family than its US counterpart.

    The current US administration’s insistence on forcing certain denominational hospitals to provide services that run contrary to their religious tenets is a serious worry.  Similar situations have cropped up in at least two Australian states in the past 5 years.  In both states, denominational hospitals were exempted from the parts of the legislation they found onerous.

    It beggars belief that my birth country can’t reach a similar pragmatic compromise on such a sensitive matter.

  • JP

    From what I understand, CJ Roberts so-called limitations on the Commerce Clause had no concurring justices. It was essientially a private opinion he wrote, which has no binding properties. One legal writer said it was more of an aside than anything else.

    • Cylea


      Good news for you. The four dissenting justices (Alito, Kennedy, Scalia, and Thomas) also agreed with Roberts’ interpretation of the Commerce Clause. Those five votes make it binding constitutional law. In fact, Justice Ginsburg spent a substantial part of her opinion dissenting from the Commerce Clause ruling.

      The final vote was 5 (Roberts plus the conservatives) to 4 for a narrow interpretation of the Commerce Clause and 5 (Roberts plus the liberals) to 4 upholding the ACA as a tax.

      • Bender

        Sorry, but take it from this constitutional lawyer — because the musings concerning the Commerce Clause were not outcome-determinative, that is, because what Roberts (and the joint dissent) said was completely unnecessary to the judgment of the Court that the law was constitutional and valid, those musings about the Commerce Clause are just that, musings, editorial comment.  As dictum, it establishes no binding precedent whatsoever.

        • Cylea


          Thanks for weighing in. I’m aware that there is a difference between dictum and a holding, but I’m at times fuzzy on where the line is. Five votes upheld the law as a tax. But Roberts seemed to make it very clear in his opinion that he reached the taxation argument ONLY because he FIRST rejected the more “natural” reading of the statute under the Commerce Clause. Given that he was the deciding and necessary 5th vote for the majority, could you clarify how his rejection of the Commerce Clause argument was not ultimately necessary for the judgment of the Court?

          Many thanks,