Tam laments that Chief Justice Roberts doesn’t seem to understand the role of the courts in being a check against excesses of democracy. I believe the NFIB opinion was unequivocally a loss for freedom, and created an unnecessary expansion of federal power through the power to tax. But I do not believe it was a disastrous loss, because the opinion places greater restraint on federal power in other areas, and does not specifically overturn many of the limitations placed on Congress’ power to tax, which is not unlimited.
A lot of folks on blogs have been suggesting that whether the power is reached through taxing power or commerce power is six one way half-dozen the other. I don’t agree that’s the case. The taxing power is more limited than if Congress could exercise one of its enumerated powers to enact a mandate. First, The Roberts Opinion did not directly overturn Bailey v. Drexel Furniture Co. which held the Child Labor Tax unconstitutional because it was a penalty masquerading as a tax. Robert went on at some length to distinguish the ACA’s mandate as from the one in Drexel Furniture. Some of his reasoning was painfully weak, but by making the distinction, it keeps in place a limit on how far Congress could go before a tax is considered a penalty in disguise. The ACA exempts people who pay no income taxes, and then taxes at a base rate of 700 dollars, continuing at 2.5 percent of income up to a maximum of the cost of a plan purchased from one of the health exchanges. This was enough for Roberts to distinguish it from Drexel Furniture, where the penalty was 10% of net profits. Roberts considered the ACA “tax” was not punitive in nature. Because Roberts maintained limits to this new power, it leaves open the path for future challenges should Congress decide to exercise its taxing power similarly in the future. If this act was ruled a valid exercise of Congress’ power under the Commerce Clause, or Necessary and Proper Clause, there would be no limit; Congress could impose burdensome, punitive fines, and/or impose jail sentences.
Because of the way the case was decided, I think it’s a a stretch to put Roberts in the same category as the left-wing of the court, or to suggest he’s turned liberal, or is as liberal as anyone Obama would nominate. Obama’s and Clinton’s court nominees, if they had gotten their way, would have abolished the entire idea that Congress’ powers are limited. Roberts has been willing to strike down legislative enactments where it’s been in clear violation of Constitutional standards, and has indicated a willingness to go along with restricting federal power in several areas that aren’t trivial, including restraining federal and state power to regulate guns. While I am greatly disappointed in his expansion of the federal taxing power, I am quite pleased he agreed to expand coercion doctrine, meaning the federal government does not have plenary power to blackmail the states into doing its bidding by threatening withdrawal of funding. This isn’t a small deal.
While I don’t think the NFIB decision was a complete disaster for liberty, we still need to be watchful. There’s a strong current in conservative legal thought that supports the concept of judicial restraint. Conservative justices always seem torn between judicial minimalism, originalism, and other competing ideas in conservative legal thought which leads them to sometimes wander off the reservation. I would argue we need nominees who are committed to the destruction of the New Deal, and to the restoration of our federal government as one of limited and enumerated powers — justices who won’t hesitate to strike down enactments of Congress in order to limit its power. I do expect the Court to save us from ourselves. That’s the body’s purpose. Our founders were not the proponents of democratic rule that many on both the left and right of legal thought are today, and I think they were correct in their skepticism of it. It’s a shame our political class has seemingly lost that healthy skepticism.
