It seems that everyone is a constitutional scholar today following the U.S. Supreme Court’s decision earlier this morning upholding the constitutionality of the Patient Protection and Affordable Care Act, Public Law 111-148. See Opinion, National Federation of Independent Business v. Sebelius (Sup. Ct. Case No. 11-393) (PDF). The Court’s landmark ruling is notable not only for the fact that Chief Justice John Roberts (whose nomination President Obama opposed back in 2005) joined the Democratic appointees of the Court in upholding the constitutionality of the individual mandate requiring individuals to purchase health insurance (the hallmark of the President’s health care statute), but also because the Court upheld the individual mandate as a valid exercise of Congress’s taxing (rather than commerce) power. Whoever said that alternative arguments in appellate briefs aren’t important?
The question of whether the individual mandate is a valid exercise of Congress’s taxing power should not come as a surprise to readers of this blog. We’ve been following the taxing power argument for over a year, and we specifically highlighted the possibility that the Supreme Court ultimately would uphold Congress’s authority to enact the individual mandate under its plenary taxing power (as opposed to the commerce power, which is an argument that did not find support with the majority of the justices). While a majority of legal experts were expecting the Supreme Court to invalidate the individual mandate today, we cautioned against making predictions based on oral arguments, and we were right.
Interesting, while the Supreme Court held that the individual mandate was a tax for constitutional purposes, it also held that it was not a tax for purposes of the Anti-Injunction Act, which would have barred plaintiffs’ challenge. The Court’s conclusion relating to the Anti-Injunction Act is the same conclusion reached by the Sixth Circuit a year ago (on June 29, 2011) when it became the first Circuit Court in the country to uphold the health care statute’s constitutionality. See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). But it’s also where much of the Supreme Court’s agreement with the Sixth Circuit ended. Chief Justice Roberts flatly rejected the Sixth Circuit’s central reasoning in Thomas More that the individual mandate could be upheld under Congress’s commerce power. In doing so, the Chief Justice accepted the “activity” vs. “inactivity” distinction previously rejected by the Sixth Circuit under which the plaintiffs argued that Congress could not stretch its commerce clause authority to regulate intrastate inactivity or, in effect, mere “existence” within the borders of the United States. Chief Justice Roberts also disagreed with the view expressed by Judge Sutton in his concurring opinion in Thomas More that the individual mandate could not be sustained under Congress’s taxing power.
But if there is one important point of agreement between Chief Justice Roberts and Judge Sutton, it is that the policy merits of the individual mandate should be resolved by the people’s elected representatives, not by a judiciary acting as a super-legislature. And so the debate over the individual mandate will rage on in the political sphere. Meanwhile, generations of constitutional law students will debate and analyze today’s Supreme Court’s decision spanning 193 pages. It’s an exciting time to be a constitutional law scholar.