By:  | 

2012 Year in Review: Hail to the Chief!

June of 2012 was a suspenseful time in America. The U.S. Supreme Court was to issue its ruling on the case of the Patient Protection and Affordable Care Act, popularly known as "Obamacare," and the stakes could not have been higher. At the center of the case lay the disputed constitutionality of the bill's key provision, the individual mandate, which would require most Americans without health coverage to purchase minimal private health insurance or else pay a "shared responsibility payment" to the Federal Government. If the justices were to decide that the individual mandate was constitutional, the Affordable Care Act would remain the law of the land, and President Obama would be that much closer to reelection. If they were to rule that the individual mandate was unconstitutional, however, President Obama's signature legislation would be finished, and Mitt Romney would be better equipped to win the upcoming presidential election.

The latter outcome certainly seemed likely. It was a simple numbers game. Of the nine justices now on the bench, five are more judicially conservative and four are more liberal--a probable majority voting to strike down the mandate. But that's not what happened. The ruling wound up being a 5-4 vote in favor of the individual mandate's constitutionality with one of the conservative justices siding with the four liberals. Who was the defector? The Chief Justice, John Roberts.

People were stunned. Appointed by President Bush in 2005, Chief Justice Roberts was known for his strong conservative judicial philosophy. Yet here he was effectively upholding the Affordable Care Act, a law utterly deplored by the Right. Confused and angered, many conservatives quickly went on the attack. Some labeled the Chief "narcissistic" and a "coward." Others questioned his motives, asserting that he either caved in to left wing pressure, or made his decision for political gain. To them, he disgraced his judicial legacy, as well as the Supreme Court's.

After reading the Court's opinion, however, I could not have disagreed more. I not only concurred with the Chief Justice--I was inspired by him. I viewed him as the type of judge we need in our judicial system, the type of public servant we need in our public sector. As 2012 reaches an end, I would like to revisit Chief Justice Roberts' decision on the individual mandate, for it stands in my mind as one of the monumental events of the year in politics and deserves recognition as such.

To appreciate the decision, though, it's important to bear in mind that our federal government "is one of enumerated powers," as Chief Justice Marshall wrote in 1819. It does not retain the power to enact whatever laws it wishes--no matter how reasonable or necessary--but may perform only those functions enumerated to it by the Constitution. The states, however, are different. Unless explicitly prohibited by the Constitution, they do not require constitutional permission to act, and thus perform numerous functions otherwise prohibited to the federal government. This is the federalist system on which America was founded, one of its purposes being to secure the peoples' freedom by limiting the federal government's authority and granting power to the States; local governments that would be more responsive and accountable than some far off bureaucracy.

Given that background, it is understandable why many would feel that the Affordable Care Act's individual mandate would be unconstitutional: such federal power that could strongly influence people to purchase private health insurance would seem to contradict the very concept of federalism. But during the case's oral arguments, the government argued that the individual mandate is constitutional, essentially for either one of the following two reasons.


The first reason is that it is authorized under the Commerce Clause. In it, the Constitution states that Congress has the power to "regulate commerce," which the Supreme Court has over time interpreted to include not strictly commerce, but also "those activities that substantially affect interstate commerce." The government asserted that the individual mandate is exactly that: the regulation of activities substantially affecting interstate commerce. Here the government was referring to a major cost-shifting problem in America's healthcare market.

Many people without health coverage end up visiting hospitals for treatment when they become ill. Because hospitals must legally treat them, they are often only partially compensated for their care if at all. This is where the cost-shifting begins. Hospitals wind up shifting the cost to healthcare insurers in the form of higher rates, and healthcare insurers in turn shift the cost to their insurance holders in the form of higher premiums. So much so that family healthcare premiums are estimated to have increased on average by over $1,000 a year--indubitably an "effect on interstate commerce," as it is has become financially harder for many families to keep their health insurance.

This cost-shifting problem is what the individual mandate was partially designed to remedy. With more people suddenly required to purchase private health insurance--people who are thought to be healthy, and whose premiums should then be higher than any near-future health expenses--insurance companies would use the new revenue to pay for the higher rates shifted to them by hospitals. After all, people without health coverage will continue to visit hospitals for treatment, for many will remain below the income level that would require them to purchase private insurance under the individual mandate. The government's first argument is that the individual mandate is constitutional under Congress's power to regulate interstate commerce.

There is just one problem with that argument: Never has the Commerce Clause been interpreted to authorize regulation of non-activity affecting interstate commerce--only actual activity. As Chief Justice Roberts wrote,

“The power to regulate commerce presupposes the existence of commercial activity to be regulated […]. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce."

Along with the dissenting justices, Chief Justice Roberts agreed that such federal power that can largely force people to purchase an unwanted product would constitute an unconstitutional expansion of power. To quote Chief Justice Roberts again,

"People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures--joined with the similar failures of others--can readily have a substantial effect on interstate commerce. Under the government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act. This is not the country the Framers of our Constitution envisioned."

Therefore, the government's first argument was not accepted.


If not the Commerce Clause, the government's second argument is that the individual mandate is constitutional under Congress's power to "lay and collect Taxes." Accordingly, the government contended that the Court should view the individual mandate not as a requirement to purchase health insurance, but that its "shared responsibility payment" was merely a tax on those who do not.

The dissenting justices didn't buy it, and for a simple reason: The payment is officially called a "penalty" and not a "tax." To them, the two terms are mutually exclusive, and constitutionally it matters how Congress labels legislation. A tax is "an enforced contribution to provide for the support of the government." A penalty "is an exaction imposed by statute as punishment for an unlawful act." The two are different, and to interpret a penalty as a tax would be to judicially rewrite the statute.

Chief Justice Roberts disagreed. Although the individual mandate is labeled a "penalty" and not a "tax," he believed that what matters constitutionally is not how a statute is labeled--but how it functions; if it functions like a tax and not a penalty, then constitutionally it is a tax. Where did he get this idea from? Many previous Supreme Court cases, along with a known judicial tradition: "if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so," to quote Chief Justice Roberts.

That said, the Chief Justice found that the individual mandate does function more like a tax than a penalty: it would be paid along with one's tax returns to the IRS; it would not apply to those who neither pay federal income taxes due to their low income; like taxes, it would produce revenue for the government; and unlike the definition of a penalty given by the dissenting justices, it is not considered an unlawful payment if one would decide not to purchase health insurance. On the contrary, it is estimated than around four million people will probably choose to pay the tax rather than purchase health insurance. For this reason, Chief Justice Roberts concluded that the individual mandate is constitutional under Congress's taxing power, and decided to join the liberal justices in upholding the individual mandate.


After reading Chief Justice Robert's opinion, I could not help but feel inspired. Here was a man as conservative as they come: aside for his judicial philosophy, his illustrious career spans years working for the justice department under conservative Presidents Reagan and George H.W. Bush. An all-star to the right wing, Chief Justice Roberts must have felt or known the tremendous pressure from his base to strike down the individual mandate when the case of the Affirmative Care Act came before the bench. Rather than give into politics, though, the Chief Justice did his job. He decided the case based on his understanding of the constitution and out of deference for the Supreme Court's precedent. In a year filled with news headlines reporting Washington's polarized, political state, we can look back and be proud of the courage, professionalism, and respect Chief Justice Roberts demonstrated in his decision in the case of the Affordable Car Act.