Was Replacing a Boundless Commerce Clause With a Boundless Tax Power a Stroke of Genius?


An editorial in today's Wall Street Journal rejects the view that Chief Justice John Roberts' majority opinion in National Federation of Business v. Sebelius shows him to be "a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times." Roberts instead looks like a politician, the Journal argues:

His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

The Journal accurately charges Roberts with "rewriting the plain text of a law" so he could uphold the individual health insurance mandate as an exercise of the tax power, converting the "penalty" that the Patient Protection and Affordable Care Act imposes on anyone who "fails to comply" with the "requirement to maintain minimum essential coverage" into a revenue-raising levy. Even if Congress had explicitly framed the mandate as a tax, the Journal says, that would not resolve the question of whether the policy amounts to an unconstitutional "direct tax."

The Journal notes that the tax power endorsed by Roberts is no less sweeping and dangerous to liberty than the Commerce Clause argument he rejected. "From now on," it says, "Congress can simply regulate interstate commerce by imposing 'taxes' whenever someone does or does not do something contrary to its desires." Worse, as I pointed out last week, the tax trick allows Congress to dispense with claims about interstate commerce altogether. As long as a mandate is disguised as a tax (and as long as it does not violate explicit limits on federal power such as those listed in the Bill of Rights), "because we said so" is reason enough.