Four ways the Supreme Court could split the difference on health care

June 27, 2012

Let's imagine that Chief Justice John Roberts doesn't want to overturn all or part of the Affordable Care Act. It's just too big, and too political, a step for the Supreme Court to take — particularly when he made respect for precedent and judicial humility a touchstone of his confirmation hearings.

But let's say that Roberts is also uncomfortable with the idea of backing the individual mandate. Perhaps he buys the broccoli analogy. Perhaps he thinks the Commerce Clause has gone too far. Or perhaps, as a longtime conservative, he just doesn't want to go down in history as the chief justice who betrayed the movement that put him on the bench.


Elena Kagan is congratulated by Chief Justice John Roberts after being sworn in as the 112th U.S. Supreme Court justice. (Paul J. Richards/AFP/Getty Images)

If that's the case, Roberts might be looking for a way to split the difference — to somehow rule for and against the Affordable Care Act at the same time. And lucky for him, an array of legal scholars have been trying to figure out ways he could do exactly that.

1) Strike the mandate, leave the penalties. Joey Fishkin of the University of Texas thinks  that the Supreme Court could call the mandate unconstitutional while leaving the law functionally unchanged:

Why not strike, and sever, the mandatory exhortation: strike any suggestion that you “must have” insurance, any suggestion that the government in any way “mandates” that you do (a) rather than (b).  Leave all functional tax code provisions as they are.  Those who do not have insurance will pay $695-$2085.  Choose (a) or (b), either is fine.

Conveniently, as it turns out, the only language in the statute saying that individuals "shall" maintain insurance coverage is located in its own (very short) section, Section 5000A(a).  The tax penalty can be found in Sections 5000A(b) and following.  It would be very straightforward for either Justice Scalia or his law clerks to strike 5000A(a) and leave everything else intact.

For those who think the word "penalty" retains a kind of mandatory sting, as though it's not really ok to choose to pay a "penalty," I would suggest that you are perhaps a bit hung up on labels, but if you must, simply strike the first four letters PENA throughout the statute, leaving in place LTY, an abbreviation for “little tax yearly.”  That way there will be no more “penalty"; those who choose to go without insurance will have to pay a "little tax yearly" in the amount of $695-$2,085.

2) Strike the mandate, dispute its existence. Walter Dellinger, a former solicitor general in the Clinton White House, suggests that Roberts could say that it would be unconstitutional to force Americans to buy health insurance. Point, conservatives! But the court could also hold that the Affordable Care Act isn't actually forcing anyone to buy health insurance:

 The court could opine that an “individual mandate” that compelled Americans to engage in commerce with a private party is unconstitutional. But, the court could say, this law does not actually force anyone to engage in commerce. As I noted last month in The Washington Post, “Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.”

The law’s challengers have responded that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. Here is where the court could give a theoretical victory to the challengers: By saying that if you did read the law that way — as its text seems to suggest — as making lawbreakers out of those who don’t acquire health insurance, it would be unconstitutional. But we don’t read it that way, the court could say. We read it as nothing more than an incentive to purchase coverage. No one is compelled to make a purchase from a private party because they can choose, instead, to pay a relatively modest penalty that never exceeds 2.5 percent. This makes the decision about whether or not to have insurance a genuine choice, not a compulsion.

3) Punt. This was the solution favored by Judge Brett Kavanaugh, a conservative star on the D.C. Circuit Court of Appeals. He argued that the Anti-Injunction Act specifically barred the court from considering the mandate until the federal government actually begins enforcing it:

[T]he Affordable Care Act requires that the tax penalty for failure to maintain health insurance “be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68” of the Tax Code. And penalties under subchapter B of chapter 68 in turn must “be assessed and collected in the same manner as taxes.” It follows from those two provisions, taken together, that these Affordable Care Act penalties must be assessed and collected “in the same manner as taxes.” Taxes are insulated from pre-enforcement suits by the Anti-Injunction Act. [...]

Between now and 2015, Congress might keep the mandate as-is and the president may enforce it as-is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day – a day that may never come.

4) Reject the Commerce Clause reasoning, but find that the mandate is a tax. A related option for the Supreme Court would be to say that the federal government does not have the power under the Commerce Clause to impose an individual mandate. But it does have broad power under the Constitution to levy taxes. So, writes  David Savage in the L.A. Times, the court could find that the mandate is a tax:

Lurking in the background is a way to decide the case on tax law grounds. No one can be prosecuted, punished or fined for violating the mandate. In fact, the word "mandate" does not appear in the law. In "practical operation," the administration argued, it's just a tax law.

If the mandate is really just a tax, that would be supported by the Constitution, which says Congress "shall have the power to lay and collect taxes … to provide for the common defense and general welfare."

So, in the end, the justices could agree the law's required tax payments are constitutional, while also making clear the government does not have broad power to mandate purchases.

For the record, I don't expect the Supreme Court to issue any of these rulings. But what I expect the Supreme Court to do doesn't matter very much.

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Suzy Khimm · June 27, 2012