Theodore Olson
The Supreme Court’s decision abounds with legal and political ironies. Foremost, and central to the result, is the majority’s conclusion that the individual mandate is a legitimate exercise of Congress’s power to tax. During the legislative debate, the President and his allies were adamant that the mandate was absolutely not a tax. Had they marketed this provision as a tax, the bill would surely not have passed. So the Supreme Court saved the signature legislative achievement of the Obama Administration precisely because it was not what the Administration said it was.
When the case got to court, the Administration invoked the federal Anti-Injunction Act, which bars suits to restrain the collection of any tax. The government argued that this law precluded the challenge to the mandate. So if the mandate was, indeed, a tax, this law would have made the case dead on arrival. But in examining this provision, the court held that the mandate was not, after all, a tax; it was just what Congress called it, a penalty. The choice of labels, the court said, cannot control as to whether the law is constitutional but does control as to whether the tax anti-injunction law applies. When I use a word, the court, like Humpty Dumpty, said, it means just what I choose it to mean, neither more nor less.
The magic of this dueling taxonomy of the word mandate meant that because it is a penalty, the court could go forward to consider its legality, but because it is a tax and not a penalty, it is a lawful exercise of Congress’s taxing power, not an unlawful regulation of commerce as the dissenters asserted. Like Marbury v. Madison 200 years ago, in which the Supreme Court held that it had the power to decide whether laws were constitutional, this court exercised that power after dispensing with a provision that would have denied to the court the power to do so in the first place. If it was a tax, the court could not have upheld the tax. But because it was a penalty, it was lawful as a tax. Chief Justice Roberts has learned a thing or two from his legendary predecessor Chief Justice Marshall.
Yet another irony is that five Justices decided that Congress did not have the power under the commerce clause to regulate doing nothing — not buying health insurance. But five Justices (only Chief Justice Roberts in both camps) held that Congress does have the power to impose a tax for doing the same nothing.
Our constitutional law professor President, who insisted that Obamacare was constitutional, was right all along. But he was right because he was wrong. He was right that it was constitutional because he was wrong that it was not a tax. He either doesn’t know his constitutional law that well or his politics counseled not sharing that wisdom with Congress voting on the measure.
The political irony is that the individual mandate is widely unpopular and will become more so when small businesses and individuals start to pay for it and when the tax man comes collecting the penalty (i.e., tax) from the uninsured. On the other hand, solving the health care crisis is something the public does want. If Obamacare had been struck down, the President’s re-election campaign would have targeted the five evil Republicans on the Supreme Court, as he signaled with his outburst challenging the court shortly after his team faced rough sledding in the court’s oral argument. His campaign was already fashioning a direct challenge to Mitt Romney and Republicans in Congress to come up with their solution to the health care crisis before the election. A virtually impossible and highly perilous political course.
That avenue is now foreclosed. So by winning his case in court, the President now has to defend an unpopular law that he secured by misrepresenting what it was. And he cannot attack Republicans for not offering a solution because his solution is now the law. He got what he wished for.
So President Obama may have lost by winning and might have won had he lost. One gets a sense from the White House spin after the argument that there was a secret longing that the court would take the bait and do precisely what the President was, in a sense, daring it to do. Chief Justice Roberts did not bite.
Finally, the rejoicing by liberals may be short-lived. Their version of federal power was vindicated but only if they want to enact politically unpopular taxes. On the other hand, five Justices significantly reined in federal power to regulate commerce and, in another part of the court’s opinion, to exercise power under the spending clause. These authorities are much easier politically to exercise in Congress; unfunded mandates are one of the preferred ways of taxing in sheep’s clothing. The court’s decision, while reaffirming authority that is hard to use, restricted authority that is easier to use. Like the President, they may have lost by winning.
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Theodore B. Olson served as solicitor general under George W. Bush from 2001 to 2004.
