Monday, July 02, 2012

The Affordable Care Act Decision

I am, and have been, troubled by the individual mandate included in the Affordable Care Act. I'm not sure I want the government to be able, either through the Commerce Clause or the Taxing Power, to make me enter into a business agreement with a private entity (like an insurance company).

Now, I do get the argument that the tax penalty one incurs for failing to maintain health insurance is really no different than the credit one gets for a mortgage or for dependents. If one makes payments on a mortgage they pay less tax; if one has children or dependents one pays less tax; if one maintains health coverage one pays less tax. Viewed in this way, the mandate isn't really a big deal. Of course, I have also always been troubled by tax credits for mortgages and dependents too. Why should a renter pay higher taxes than someone who takes out a mortgage? Why should a childless person pay more taxes than someone who has kids? Especially since people who have mortgages and kids are, in my opinion, more likely to benefit from things that are paid for with taxes. People without kids aren't adding to the costs of the schools by creating more kids needing education. People with mortgages benefit more proportionally from fire and police protection, since they have a bigger investment they need those services to protect. Etc., etc. So, while I agree that the individual mandate isn't functionally different than many tax incentives already built into the tax code, my concerns about the mandate aren't greatly lessened by that line of argument.

And, while I have difficulty believing the Commerce Clause gives Congress the power to compel citizens into commerce, I do agree that the so-called 'activity/inactivity distinction' does not actually appear in the Constitution. That is to say, while I wouldn't read the Commerce Clause as allowing Congress to compel commerce, that's just my interpretation, as the Constitution doesn't indicate whether "regulating" commerce includes or does not include the power to compel citizens to engage in commerce. On the other hand, I am not a fan of the Supreme Court's Commerce Clause jurisprudence over the past 150 years anyway. I think Wickard and Raich were both wrongly decided. I don't think the Commerce Clause should allow Congress to reach intra-state commerce by simply asserting that it has an "impact" on interstate commerce. Of course, that ship has sailed, but I am nevertheless troubled by the reach the Court has given the Federal government through its interpretation of the Commerce Clause.

This is by way of explaining that I have, therefore, been ambivalent about the outcome of this case. On the one hand, I kind of wanted the ACA to be upheld because it would have been such a blow to the President and the Democrats if it were struck down. (Yes, naked partisanship, but I am not immune to sometimes wanting my team to win even when I'm not sure they should). On the other hand, I wasn't entirely sure that 'my team' should win. And it did really bother me that the mandate was an invention of the right (the Heritage Foundation first proposed it) and supported by the right (including by Romney when he enacted it in Massachusetts) until Obama came to agree with them. And then, suddenly, the mandate was a tyrannical attack on freedom. The height of hypocrisy. Of course, on the other hand, Obama opposed an individual mandate when running for President in 2008. I'm not sure, really, if he opposed the mandate in 2008 simply because Hillary supported it, or if he truly opposed it in 2008 but embraced it later because it was a necessary compromise to get the ACA passed. (Or he could also just be a hypocrite too).

So, what do I think of the decision? I was surprised by it, for one thing. I thought, as did most of us on the left, that the ACA would be struck down. I was also surprised that it survived by the tax argument and not the Commerce Clause argument. The tax argument was widely believed the weaker of the two arguments and not likely to succeed. And I was surprised that Roberts was the swing vote to uphold the law.

I agree with Roberts' (and the liberal justices') view that since the mandate penalty would clearly be constitutional if it were construed as a tax, and that the penalty is part of the tax code collected by the IRS and is functionally identical to a tax, that it therefore doesn't matter that Congress called it a "penalty" instead of a tax. It functions, for constitutional purposes, as a tax, and therefore is a tax, regardless of what it was called. I think this is right. I don't think whether something is constitutional or not should be subject to a "magic words" test, where a law can be struck down because Congress didn't use the right "magic words," that is to say, the word "tax." After all, no one thinks Congress should be able to pass anything they want by calling the measure a "tax" even if it clearly isn't. Using the magic word "tax" doesn't make something clearly not a tax okay under the Taxing Power, so conversely, it shouldn't matter whether something that operates as a tax under the Taxing Power is actually called a "tax" or not. The question is whether the thing at question actually functions as a tax or not, not what Congress calls it. I think this is clearly correct.

So, on the merits, and the legal arguments, I think Roberts has it right that the mandate is constitutional as an exercise of Congress' power to tax. I'm not sure Roberts (and the conservative dissenters) have it right that the mandate fails under the Commerce Clause. I think the mandate should fail under the Commerce Clause because the Commerce Clause shouldn't be interpreted as allowing Congress to compel commerce. But that's just my opinion on the Commerce Clause, and since the Constitution doesn't actually say that Congress can't compel commerce under the Commerce Clause, there's a colorable argument that Congress does have the power to compel commerce under the Commerce Clause. Congress shouldn't have that power. But I'm not convinced that the Constitution absolutely positively doesn't grant Congress that power.

So, I'm all over the place on this one. I'm kinda happy the ACA was upheld because it would be such a blow to the Obama Administration if it were struck down. (Of course, I'm moderately displeased with the Obama administration for a whole host of reasons, but since I don't want Obama replaced by Romney, I have to continue to support Obama). But I'm not sure if the ACA is, in the end, a good thing or if it is just a giveaway to the insurance companies. Also, I'm more than half convinced that the ACA being struck down would lead, more quickly, to the adoption of a single-payer system, which is probably what we should have. The ACA will delay that, and not necessarily to our good. So, in that sense, I'm not happy that the ACA was upheld.

The only unalloyed good thing to come out of the ACA decision is the Schadenfreude I am enjoying at the kvetching of the tea partiers and others on the right who are calling the ACA ruling the end of the republic and the death of freedom. I am enjoying their salty tears immensely, because while I am troubled by aspects of the ACA and the jurisprudence surrounding it, on no account do I think it is the the end of the world. So I can at least enjoy the right's pain at the decision if nothing else.

(I am also experiencing the cognitive dissonance many on the left are experiencing right now in our opinion of Roberts after this ruling. He has been pretty damned partisan in his rulings up to this and signed on to some whoppers of bad rulings including Citizens United. But now, all of a sudden, he not only becomes the swing justice upholding the Obama Administration's signature achievement, but is the center of a storm of controversy because he supposedly changed his mind mid-stream, abandoning the conservatives on the Court to side with the liberals? Who is this guy? Does he really just "call balls and strikes," as he claimed in his confirmation hearings, or is he a partisan hack? Did he change his mind because he thought the conservatives were wrong or going too far, or was he influenced by worries about his legacy or by supposed "pressure" from the liberal media? Who knows? I really don't know what to think of Roberts after this. But I am enjoying how he is suddenly persona non-grata amongst conservatives who now think he's a traitor to the cause despite his very conservative record up until now).


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