Roberts Was Wrong to Apply the Canon of Constitutional Avoidance to the MandateNicholas Quinn Rosenkranz • July 11, 2012 • 8:36 am
In his ACA decision, Chief Justice Roberts concludes that the individual mandate can be sustained as an exercise of the taxing power, even though he concedes that it is read “more naturally as a command to buy insurance than as a tax.” His key move is an application of the canon of constitutional avoidance, which he explains as follows: “The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”
The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd. The canon applies when a statute is ambiguous—when it can plausibly be read to mean two different things. In the Chief Justice’s example, “vehicle” could be read to mean something like “device for transport,” which would include bicycles, or it could be read to mean “motorized device for transport” which would exclude them. If including bicycles would violate the Constitution, then the canon of constitutional avoidance would counsel adopting an interpretation of “vehicle” that excludes them. The statute includes an ambiguity about quite what it forbids, and the canon helps to resolve the ambiguity.
But the individual mandate is not ambiguous in the same sense that “vehicle” is ambiguous. It is crystal clear what the mandate requires: get insurance or pay a certain amount to the IRS. There is no alternative interpretation. There is no marginal case, like bicycles, that is up for debate. Whether it is called a “penalty” or a “tax”, the individual mandate has exactly the same legal consequences. Compare Oliver Wendell Holmes, Jr. in “The Path of the Law”:
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict . . . . [And] from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is shown by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax.
Whether the individual mandate is called a “penalty” or a “tax,” it means what it means and requires what it requires.
So when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense. This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. The Chief is not interpreting the meaning of a statute to avoid a constitutional problem. Instead he is characterizing a statute—whose meaning is not in doubt—to be a tax for purposes of the Constitution. See, e.g., NFIB v. Sebelius at *24 (framing the issue as whether the individual mandate “may be viewed as an exercise of Congress’s taxing power”) [emphasis added]; id. at *25 (“the shared responsibility payment may for constitutional purposes be considered a tax”) [emphasis added]; id. at *30 (individual mandate “may reasonably be characterized as a tax”) [emphasis added]. The canon of constitutional avoidance only applies when a statute is ambiguous—that is, when it is unclear what rights and duties the statute creates. Since there is no such ambiguity in the individual mandate, the canon does not apply.
This is not a mere technical objection to the Chief Justice’s reasoning. By his own account, the canon of constitutional avoidance plays a crucial—indeed an outcome-determinative—role in his analysis. The Chief Justice acknowledges that the individual mandate most naturally reads as a penalty, not a tax. Absent the canon, that would be the end of the matter. Since the individual mandate could not be sustained as a penalty, it should have been struck down.