Nicholas Quinn Rosenkranz


Professor at Georgetown University Law Center, Nicholas Quinn Rosenkranz teaches constitutional law and federal jurisdiction, and he writes articles for the Harvard Law Review and the Stanford Law Review. He is currently developing a new theory of constitutional interpretation and judicial review. The first installment, entitled The Subjects of the Constitution, was published in the Stanford Law Review in May of 2010, and it is already the single most downloaded article about constitutional interpretation, judicial review, and/or federal courts in the history of SSRN. The second installment, The Objects of the Constitution, was just published in May of 2011, also in the Stanford Law Review. And the comprehensive version is forthcoming as a book by Oxford University Press. Rosenkranz has served and advised the federal government in a variety of capacities. He clerked for Judge Frank H. Easterbrook on the U.S. Court of Appeals for the Seventh Circuit (1999-2000) and for Justice Anthony M. Kennedy at the U.S. Supreme Court (October Term 2001). He served as an Attorney-Advisor at the Office of Legal Counsel in the U.S. Department of Justice (November 2002 - July 2004). He often testifies before Congress as a constitutional expert—most recently before the Senate Judiciary Committee, regarding the nomination of Justice Sotomayor. He has also filed briefs and presented oral argument before the U.S. Supreme Court. Rosenkranz is a member of the New York Bar and the U.S. Supreme Court Bar. He is an Associate Fellow of Pierson College at Yale University. He is a Senior Fellow at the Cato Institute. He also serves as co-chairman of the Board of Visitors of the Federalist Society, and as the faculty advisor to the Georgetown Chapter.

Roberts Was Wrong to Apply the Canon of Constitutional Avoidance to the Mandate

July 11, 2012

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. Read More »