Roberts Walks a Tightrope

The New York Times outlines yesterday’s Supreme Court’s decision upholding most of the Affordable Care Act by linking brief summaries of the components of the decision to the sections of the decision in which they appear. My previous blog posts do not address the Act’s constitutionality under Congress’s power to tax, in part because–as I said yesterday–I’m not conversant with the tax power precedent. Another significant reason I did not address the tax power arguments is that the Obama administration did not advance them, either when Congress passed the law or during oral arguments in March. Chief Justice Roberts latches onto them “because we have a duty to construe a statute to save it, if fairly possible . . . Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.” In other words, Roberts is doing his damndest to construe the law as a valid exercise of Congress’s power.

The decision rejects the pro-ACA arguments resting on the Commerce and Necessary and Proper Clauses. But Roberts reaches into his hat and pulls out the rabbit, opining that the Individual Mandate is not a penalty but a valid exercise of Congress’s power to tax. It’s as close to deus ex machina as I can recall in a Supreme Court decision, legalistic ju-jitsu–because earlier in his opinion Roberts decides the Individual Mandate is not a tax for the purposes of the Anti-Inunction Act, which requires that one must first pay a tax before filing a suit challenging its validity. The Scalia, Kennedy, Thomas, and Alito dissent is having none of it: “[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”

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