The Supreme Court's 5-4 decision [PDF] upholding the Affordable Care Act (ACA) stunned me as it did others. What surprised me the most is that the majority rewrote the law in order to uphold it.
To sustain the ACA, the majority first had to uphold the constitutionality of the individual mandate. The individual mandate, which is the essential component of the ACA, requires virtually all Americans to purchase health insurance from a private company or pay annual penalties. The majority upheld the individual mandate by deciding it was a tax, not a regulatory penalty enacted under an assertion of Commerce Clause authority. Therefore, the Court ruled that the individual mandate was authorized by Congress's broad authority under its taxing power, which is located under Article I, Section 8 of the US Constitution.
The taxing power argument, however, was the government's secondary argument to support the individual mandate. The government's primary argument was that the individual mandate was a regulation justified by Congress's power under the Commerce Clause, an argument that a combination of five justices rejected. Thus, since the government's primary Commerce Clause argument was rejected, the majority had to rely on the government's secondary taxing power argument to uphold the ACA.
The government's taxing power argument had been a loser in the lower courts, and that is why it was surprising that the majority accepted it. By my count, nine other federal courts (three courts of appeal and six district courts) had considered the constitutionality of the ACA, and as Judge Kavanaugh of the US Court of Appeals for the District of Columbia Circuit posited in his dissent in Seven-Sky v. Holder: "[N]o court to reach the merits has accepted the Government's Taxing Clause argument. As a result, those courts have had to tackle the Government's Commerce Clause submission."
The reason these other judges rejected the tax argument is because, to accept it, a court would have to rewrite the individual mandate into something different from what the US Congress passed, which is exactly what the Supreme Court majority did on June 28, 2012. In drafting and passing the individual mandate, Congress took the following steps to make it clear that the requirement to pay money to the government for failing to obtain health insurance was a penalty designed to force people into the insurance market — not a tax intended to raise revenue for the government:
As discussed, a combination of five justices rejected the government's main argument that the Commerce Clause authorized the individual mandate. That was a correct conclusion, for, if five justices had accepted that argument, Congress would have been authorized to use its Commerce Clause power whenever it wanted to force Americans to buy products favored by Congress.
- In its factual findings supporting the individual mandate, Congress specifically relied only on its Commerce Clause powers, not its taxing powers,
- Congress knows the difference between penalties and taxes. Penalties compel or punish behavior, while taxes raise revenue to support the government. In the ACA, Congress specifically called other assessments of money "taxes," for example, the taxes on indoor tanning services and medical devices, because Congress intended those provisions to raise revenue, unlike the individual mandate,
- An earlier version [PDF] of the individual mandate used the word "tax," but Congress intentionally removed that language and replaced it with the word "penalty" before the ACA was enacted,
- Congress eliminated traditional IRS enforcement methods (such as criminal penalties, liens, and levies) for failure to pay the individual mandate penalty, again underscoring that Congress did not consider the penalty to be a tax. If Congress had, it would not have removed those enforcement methods, and
- Congress listed multiple revenue-generating provisions [PDF] in the ACA. In that list, Congress did not include the individual mandate because it was intended to achieve Congress's stated goal of increasing enrollment in the insurance market, not to generate revenue for the government.
The rejection of the Commerce Clause argument should have been the end of the case and the end of the ACA, but it was not. Rather, the majority rewrote the individual mandate to characterize the associated penalty into a tax in order to uphold all of the ACA. During that process, the majority ignored how Congress had drafted the law.
The majority's rewriting of the individual mandate as a tax did not escape the attention of the four dissenting justices. Those four justices had determined that the entire ACA must be invalidated. They correctly explained [PDF] that "to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it ... [The majority] today decide[d] to save a statute Congress did not write."
By upholding the ACA, the majority has allowed one of the biggest tax increases in American history to stand. The ACA includes twenty new or higher taxes on families and small businesses. This tax increase will take place even though Congress did not intend the individual mandate to be a tax and even though US President Barack Obama pledged that he would not raise taxes on any American making less than $250,000 per year and assured Americans that the individual mandate was not a tax.
Although the ACA is now the law of the land, it can still be repealed. To achieve that end, it is up to the American people. As polls have repeatedly indicated, a majority of Americans do not like the ACA. Just days before the Supreme Court heard oral argument in the ACA case this past March, an ABC News/Washington Post poll [PDF] showed that sixty-seven percent of Americans wanted the Court to invalidate the ACA in full or at least invalidate the individual mandate. Additionally, as demonstrated by a Rasmussen poll taken days after the Supreme Court issued its decision, a majority of Americans continue to oppose the ACA and call for its repeal.
Now that the ACA has left the legal realm and is back in the political realm, it is up to that majority of Americans to effectuate their will at the ballot box this November and then continue to apply political pressure on their elected officials until the ACA is repealed. Only time will tell whether the public's aversion to the ACA will translate into concrete election consequences.
Edward White is Senior Counsel with the American Center for Law and Justice. He specializes in civil rights litigation, representing clients across the country primarily in the areas of free speech and religious freedom. He previously served as an Assistant US Attorney, handling federal civil and criminal cases at the trial and appellate court levels.
Suggested citation: Edward White, Supreme Court Exceeded its Authority in Rewriting the ACA, JURIST - Hotline, July 21, 2012, http://jurist.org/hotline/2012/07/edward-white-aca-rewrite.php.
This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org