Roberts Didn't Expand Government's Taxing Power

I've been a little surprised by the continued outrage on the right and chest-thumping on the left regarding the Supreme Court's health care decision. The right got everything it wanted in the ruling, save for the actual outcome. The left got legal reasoning that, up until the minute the decision was handed down, it had maintained would mark the end of government as we know it. Sad to say, but the main takeaway is that most court-watchers, left and right, care a lot about the outcome and very little about the law.

Some on the right are latching onto one bit of doctrine as cause for unhappiness in the case. In particular, they claim that John Roberts expanded the government’s taxing power substantially, such that it now provides an endless capacity that Congress lacked with the commerce clause.

This is nonsense. There are two reasons why. First, all nine justices, and even some of the lawyers arguing against the health care law, agreed that the individual mandate could be enforced under the power to tax. Here’s the joint dissent: “Of course in many cases, what was a regulatory mandate enforced by a penalty could have been imposed as a tax upon permissible action, or what was imposed as a tax upon permissible action could have been a regulatory mandate enforced by a penalty. . . . The issue [here] is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so."

In other words, the fight among the justices was not an epic struggle regarding the extent of the taxation power. It was a rather mundane fight over statutory interpretation, and whether the mandate, as written, could be construed as a tax or not...

All nine justices agreed that Congress has the power to impose a tax on people who do not purchase health insurance.

No, all nine justices did not agree that Congress has the power to impose a tax on people who do not purchase health insurance. Where in the text of the dissent do you read such a thing?

From the text of the dissent:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.
As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1, 65–66 (1936).Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome by granting funds to the States, allowing them to administer the program. That is fair and constitutional enough when the States freely agree to have their powers employed and their employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice. The Act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non consenting States all Medicaid funding.
[emphasis mine]

Cordially,

In the section you quote, when the dissent is referring to "the power to tax and spend," it is not talking about the mandate; rather, it is talking about the medicare expansion section that was struck down (the govt. had argued that it had the power to withhold funds from noncomplying states based on the tax/spend power, but the SCOTUS said the threat to wihhold funds was coercive and exceeded the tax/spend power).

On the issue of whether the mandate is constitutional as a tax, the dissenters wrote that:

The issue is not whether Congress had the power to frame the minimum coverage provision as a tax, but whether it did so.

In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U. S. 22, 62 (1932), 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.

So, the dissenters said that construing the mandate as a tax "would render it constitutional," but that it was not a tax and they could not "rewrite the statute to be what it is not."

"The issue is not whether Congress had the power to frame the minimum coverage provision as a tax, but whether it did so."

Which I construe to mean that whether or not Congress has the power to frame the minimum coverage provision as a tax was NOT THE ISSUE before them. "The issue is not...". they said. In other words, the dissenters were NOT opining on an issue that was not at issue, and the reason they gave for it NOT being at issue was the very language of the statute itself, which the dissenters complained the majority re-wrote. The word "not' is a negative. To assume that they inferred a positive power on a question that they explicitly and expressly stated was NOT even the issue before them is not logically warranted.

Cordially,

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