Roberts’ Quantum Constitution: The Simultaneous Tax/Non-Tax

Like most conservatives and libertarians, I am dismayed by the health care decision. I am puzzled by the Chief Justice’s quantum Constitution in which, with a nod to Schrodinger’s Cat, something can be both tax and non-tax. (I appreciate what the Chief Justice said about Congressional intent being now relevant and then not, but saying the words doesn’t make them persuasive.) I am concerned about the inconsistency of a view of the Commerce authority that can be so readily trumped by protean concepts of what is a tax and penalty. That could be our constitutional scheme (it is not completely incoherent), but it strikes me as undesirable, ahistorical, and overly formalistic.

At first blush, it would seem that, subject to non-Article I considerations, Congress may have its way – whatever that may be – as long as it imposes its will through the exaction of a financial penalty to be collected on the miscreant’s tax return. The Chief Justice’s opinion at least suggests that taxation is the enumerated power that permits Congress to do almost anything not included among the others.

Yet it seems clear that the Chief Justice does not regard the “taxation dodge” to the limits on Congress’ authority as unlimited. He assures us that the “power to tax” is not the power “to destroy” as long as the Court sits. In concluding that the mandate’s “shared responsibility payments” “could be” characterized as a tax, the Chief Justice observes that it will almost be certainly be “far less than” the cost of insurance for most and that many who are subject to it will choose to pay rather than insure. Given his express recognition that there is some point at which a “tax” may become a “mere penalty,” this suggests that a “tax” may be a “penalty” as soon as it becomes “coercive” as opposed to merely “encouraging.”

If there is indeed a tax “work around” to limits on the Commerce power, compliance with whatever will avoid the financial exaction cannot amount to an offer that cannot be refused. The “power to tax” cannot effectively “destroy” the ability to choose.

This is, I admit, a tarnished silver lining. But it is, nevertheless, a real one. The Chief Justice may have been motivated by a misplaced and perversely executed institutional concern about confronting the President and invalidating important legislation by a 5-4 vote. (I’d argue that what seems to be a results-oriented shift has done far more damage to the public perception of the Court and the cause of judicial independence than striking down the law ever could have.) If that’s so, this decision may not have legs.

I am not a health care economist. But it has never been clear to me that the mandate’s penalty (as the Obama administration continues to call it) is high enough to compel enough people to purchase insurance to avoid (or to pay for) the adverse selection that would otherwise flow from the ACA’s guaranteed issue and community rating provisions.

If I am right about the limiting principle, it is not clear how much the penalty can be raised without putting its constitutionality back into play.