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June 28, 2012

Roberts: 'Need Not Be Read To Do More than Impose a Tax'

"Read" or, say, "interpreted." While I agree with a practical approach to the law, engaging in interpretation on this scale is unwarranted. I disagree strongly with Chief Justice Roberts use of the word "reasonable" in his conclusion:

The Affordable Care Act is constitutional in part andunconstitutional in part. The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax . . .

(Emphasis added.) The prudential, reasonable thing to do would have been to strike down the ACA and tell Congress "We don't however rule today on the constitutionality of ACA as a tax," thereby leaving open that issue for Congress to try again if it wanted. What Roberts has done is rewrite the law.


Earlier in his opinion Roberts explained the reasonableness of construing the ACA as imposing a tax:

The joint dissenters argue that we cannot uphold§5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. An example may help illustrate why labels should not control here. Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy efficient windows must pay $50 to the IRS. The amount due is adjusted based on factors such as taxable income and joint filing status, and is paid along with the taxpayer’s income tax return. Those whose income is below the filing threshold need not pay. The required payment is not called a “tax,”a “penalty,” or anything else. No one would doubt that this law imposed a tax, and was within Congress’s power to tax. That conclusion should not change simply because Congress used the word “penalty” to describe the payment. Interpreting such a law to be a tax would hardly “[i]mpos[e] a tax through judicial legislation.” Post, at 25. Rather, it would give practical effect to the Legislature’s enactment.

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it. The “question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”

Via Kali at SCOTUSblog, liberal writer Dorf on Law points out Roberts' anti-formalism and applauds him for his pragmatism.

[T]he very fact that he sustained the Act as a tax shows that he has a deeply anti-formalist streak. That was apparent during the oral arguments, when he, more than anyone, expressed puzzlement over how one could even say that the law contained a "mandate" when its only enforcement mechanism was tax liability for some and nothing for others. And in the end, it turns out that was enough for him.

. . .

I think that CJ Roberts was simply led by the ineluctable logic of the anti-formalist argument that labels don't matter.

I would suggest that one man's pragmatism is another man's activism and that what Roberts has done is not an example of juris prudence. There is nothing wrong with practicality, but Roberts is pretending this switch is no big deal. On something that big, why not make Congress decide it for itself? The sensible, pragmatic thing would have been to remand the case to Congress for further action, so to speak.

In his dissenting opinion, Justice Kennedy says the court cannot rewrite the statute to what it is not and that past cases have established a clear line between a tax and a penalty.

In answering that question we must, if “fairly possible,” . . . construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than un- constitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “‘“[A]l- though this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” . . . In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” . . . to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” . . . In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here)the statute repeatedly calls it a penalty.

Pragmatism. More like "magic."

Wikipedia provides a handy definition of legal formalism:

Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. This argument finds its most eloquent expression in the Massachusetts Constitution of 1780, which provides:
[T]he judicial shall never exercise the legislative and executive powers, or either of them; to the end [that Massachusetts' government] may be a government of laws, and not of men. [1]

Formalism seeks to maintain that separation. It is a "theory that law is a set of rules and principles independent of other political and social institutions."[2]

The kind of "pragmatism" or "anti-formalism" like we've seen today is a slippery slope. It takes onus away from Congress to legislate in a clear fashion and opens up the interpretation of statute to too much convenient second-guessing by the court. This is less about the rule of law than it is the rule of men. Because where do you stop? Why not "read" the law utterly subjectively to be whatever you want whenever you want, depending upon utility in the moment?

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posted by rdbrewer at 02:44 PM

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