The Healthcare Ruling’s Stare Decisis Conundrum – Part 1Joel Alicea • July 2, 2012 • 8:30 am
Perhaps the greatest source of confusion coming out of Thursday’s healthcare ruling is whether the Court held that the Commerce and Necessary and Proper Clauses do not authorize the individual mandate. Five Justices agreed that the mandate could not stand on those two clauses, but because the mandate was ultimately upheld under the taxing power, some have suggested that the discussion of the Commerce and N&P Clauses was unnecessary to resolve the legal issues in the case and is therefore dicta.
Larry Solum and Deborah Pearlstein both note that on page 44 of his slip opinion, Chief Justice Roberts went out of his way to communicate that his Commerce and N&P Clause discussion—which was not joined by any other Justice—was necessary to the legal reasoning of his majority opinion:
But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.
I would add that, although none of the joint dissenters concurred in the section of the Chief Justice’s opinion dealing with the Commerce and N&P Clauses, the Chief Justice was eager to show that he and the dissenters were on the same page. Note the citation at the end of this passage on page 30:
Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate. Accord, post, at 4–16 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting).
All of this makes it a lot more difficult to dismiss the Roberts-dissenters’ view as dicta, as Solum acknowledges. If Chief Justice Roberts’ discussion of the Commerce and N&P Clauses was crucial for him to reach the taxing power issue—and the same analysis was obviously integral to the joint dissenters’ opinion, since they did not think the mandate could be upheld as a tax—then it would appear that the Court did, in fact, hold that the two clauses could not sustain the mandate.
This line of argument is reinforced if one considers that without the Chief Justice’s opinion, there would have been a 4-4 split on the Commerce and N&P Clauses. The Chief Justice’s view would thus seem to be the controlling opinion as to those clauses, and if that portion of his opinion was necessary to his taxing power decision (so it’s not dicta), then that portion is the holding of the Court.
Pearlstein is skeptical and offers two arguments in response to the Chief Justice. First, she says she would be “marginally more sympathetic to this argument if Roberts hadn’t also taken the position a few pages earlier (in his Anti-Injunction Act discussion) that for purposes of assessing the constitutionality of an exercise of congressional power, it doesn’t matter what the statute says, it matters what the statute does.” I think Pearlstein is primarily referring to this paragraph on page 33 of the Chief Justice’s opinion:
It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.
As the quoted passage shows, Pearlstein overstates the Chief Justice’s view. He did not say that “it doesn’t matter” how the statute labels the mandate; he said that the label is not controlling. That Congress chose to call the mandate a “penalty” instead of a “tax” surely does matter, even if it is ultimately not controlling (per the Chief Justice).
I interpret the Chief Justice to be saying that the “statute reads more naturally as a command to buy insurance than as a tax,” and the Court should follow the most natural reading of the statute unless there is some reason not to do so. In this case, the Chief Justice thought that the natural reading led to striking down the mandate, so he looked beyond it to a functional analysis that created a more strained understanding of the language but allowed the Court to uphold the mandate. He realized the functional approach led to a strained interpretation of the statute, which is why he “would [have] uph[eld] [the provision] as a command if the Constitution allowed it.” It seems to me, then, that Pearlstein sees a contradiction where none exists, and the Chief Justice could still claim that it was necessary for him to do the Commerce and N&P analysis before reaching the taxing issue.
Pearlstein then says she would:
[B]e more sympathetic if it was the Court’s habit in applying the canon of constitutional avoidance to decide the constitutional question before avoiding it. Typically, the Court notes that a constitutional question would be raised by one reading of a statute, and then construes the statute to avoid that reading precisely so it doesn’t have to opine on the meaning of the Constitution more than necessary to the outcome of the case—for all those reasons of judicial modesty they all write so much about so often. (Cf. Pearson v. Callahan.)
Steven Schwinn makes a similar argument: “There’s nothing that says that an argument presented alternatively must be addressed in the order presented. (Here, the government argued first that the Commerce Clause supported universal coverage and second that the taxing authority did.) Indeed, the better course—the judicial minimalist course—would be not to address it.”
I won’t speak to what is “typical” of the Court when it comes to the avoidance canon, but Pearlstein and Schwinn must know that their version of the avoidance canon is but one of two. One canon—avoidance of constitutional doubts—operates as Pearlstein and Schwinn say: the Court follows the most natural reading of the statute until it catches a whiff of possible unconstitutionality, at which point it avoids the interpretation from which the odor wafts.
But the other version is avoidance of constitutional invalidity, which only opts for the less natural interpretation of a statute where the natural interpretation leads to actual unconstitutionality. There are different justifications for each version, but it is by no means unheard of to opt for the canon against actual invalidity. Einer Elhauge, to take one example, has written about the illegitimacy of the version Pearlstein and Schwinn describe. So there was nothing problematic about the Chief Justice’s view of the avoidance canon, and therefore it’s not clear why the Chief Justice’s preference for the “actual unconstitutionality” version of the avoidance canon defeats his view that the Commerce and N&P analysis was integral to his opinion. Pearlstein and Schwinn’s argument does not hold up.
[Part 2 of my discussion can be found here.]