Deviating from our usual topic a bit, the mandate survives, apparently as a legitimate exercise of Congress’s power to weigh and levy taxes. The federal government’s power to terminate state medicaid funds is limited. I haven not yet read the opinion. But it looks like Chief Justice Roberts wasn’t convinced. From the opinion:
Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.
That’s good, at least. I’m really curious as to Justice Robert’s logic as to how the health care mandate is not a direct tax. Orin Kerr mentions “That’s kind of funny, given that it’s the one argument we didn’t focus on much.” Probably because it was the most patently ridiculous argument, since direct taxes are forbidden by the constitution, the health care mandate is decidedly, as a tax, direct. The only direct tax the constitution allows is income taxes, and this is not an income tax. So what’s the justification?
UPDATE: Here’s the section on the logic from direct taxes:
Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution. Plaintiffs argue that the shared responsibility payment does not do so, citing Article I, §9, clause 4. That clause provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” This requirement means that any “direct Tax” must be apportioned so that each State pays in proportion to its population. According to the plaintiffs, if the individual mandate imposes a tax, it is a direct tax, and it is unconstitutional because Congress made no effort to apportion it among the States.
Even when the Direct Tax Clause was written it was unclear what else, other than a capitation (also known as a “head tax” or a “poll tax”), might be a direct tax. See Springer v. United States, 102 U. S. 586, 596–598 (1881). Soon after the framing, Congress passed a tax on owner- ship of carriages, over James Madison’s objection that it was an unapportioned direct tax. Id., at 597. This Court upheld the tax, in part reasoning that apportioning such a tax would make little sense, because it would have re- quired taxing carriage owners at dramatically different rates depending on how many carriages were in their home State. See Hylton v. United States, 3 Dall. 171, 174 (1796) (opinion of Chase, J.). The Court was unanimous, and those Justices who wrote opinions either directly asserted or strongly suggested that only two forms of taxation were direct: capitations and land taxes. See id., at 175; id., at 177 (opinion of Paterson, J.); id., at 183 (opinion of Iredell, J.).
That narrow view of what a direct tax might be per- sisted for a century. In 1880, for example, we explained that “direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate.” Springer, supra, at 602. In 1895, we expanded our interpretation to include taxes on personal property and income from personal property, in the course of striking down aspects of the federal income tax. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 618 (1895). That result was overturned by the Sixteenth Amendment, although we continued to consider taxes on personal property to be direct taxes. See Eisner v. Macomber, 252 U. S. 189, 218–219 (1920).
A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific cir- cumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
So Robert’s seems to be siding here with a view, that has some historical root, that the prohibition on direct taxes should be interpreted rather narrowly. You know, sometimes I wish I had a time machine, and could go back in time and shout “You guys need to be f**king specific when you write this stuff!”
Maybe we should have spent more time in the confirmation hearings probing the Chief Justice’s views on direct taxes.
UPDATE: More from David Bernstein on the perils of shortsightedness: “As I noted several times on this blog, the Bush Administration had one primary criterion for its judicial nominees: whether a nominee was likely to vote in favor of the government in War on Terror cases.”
UPDATE: I do have to say, of all the ways the mandate could have been upheld, this is probably the least damaging way. It would have been awful to have this be a Commerce Clause decision, or a Necessary and Proper decision. Robert’s opinion still seems to indicate there are limits to how far Congress can take this new taxing power he is giving them.