06/29/2012 04:18 pm ET Updated Aug 29, 2012

The Individual Mandate Decision and the 'Forbidden Land of the Sophists'

What follows is an initial reaction to the Supreme Court's decision on the individual mandate portion of the Affordable Care Act. The Medicaid portion of the decision is somewhat more difficult to parse, and will have to wait for a later date.

For the Court to make any decision at all on health care seems on the surface an extension of what has already been a long and acrimonious partisan battle. In this interpretation Republican judges especially wished to advance the Republican crusade of dismantling the central achievement of a Democratic president, and wished to do so in an election year. And these conservative justices, the argument runs, are thus proving the hypocrisy of their longstanding complaints on judicial activism, for overturning this major piece of legislation would hardly be an act of restraint from the bench. That Chief Justice Roberts' vote saved the central provision of the ACA throws a wrench in this argument, and thus should somewhat restore the battered reputation of the Court -- I say "somewhat" because the re-affirmation of the Citizens United decision earlier this week will be rightly perceived as continuing that decision's assault on democracy.

We must recognize first that the Court has entirely legitimate grounds for hearing the case. Circuit Courts are split on whether the ACA is constitutional: the Sixth Circuit found the individual mandate to be within Congress' powers under the Commerce Clause in TMLC v. Obama, and the Eleventh Circuit found the opposite in Florida v. Health and Human Services. So the Supreme Court is playing its proper role in deciding a live issue on which federal courts are divided. And it is also within the province of the Court to ask if a federal statute is encroaching upon fundamental rights guaranteed in the Constitution, or to ask if Congress is exceeding its enumerated powers and encroaching upon the police powers of the states, the latter of which include caring for the health and welfare of citizens.

But in the wrong hands, a set of legitimate questions can quickly become illegitimate ones. Conservative justices have long wished to hem in Congress' power to regulate commerce. They perceive the Court to have made a series of decisions in the New Deal era that were overly deferential, which have allowed legislation of just about anything under the Necessary and Proper Clause, and thus granted Congress a plenary police power that it does not have in the Constitution.

The conservative response to that congressional overreach is unfettered freedom of contract, a principle associated with Lochner v. New York (1905) that has received new life in recent decisions like Citizens United (2010) and Sorrell v. IMS Health (2011) -- in the latter, Justice Breyer explicitly noted in his dissent that the Court's ruling "reawakens Lochner's pre-New Deal threat of substituting judicial for democratic decision-making where ordinary economic regulation is at issue." In a way largely ignored in mainstream media but noted by several legal bloggers, the Court's questions on the individual mandate are also attributable to the conservative aspiration of cementing a freedom of contract as absolute, and legislatively inviolable, as other fundamental rights.

Roberts has now set himself apart from those who wish to pursue that agenda by hook or crook. He looks very like what we expect of a conservative when he places limits on what Congress can do under the Commerce Clause: in his argument, the individual mandate is not supported by the Commerce Clause, and thus also not by the Necessary and Proper Clause, because the regulation of commerce does not allow the federal government to require individuals to engage in commercial activity. On this point he agrees with the dissenters, Justices Scalia, Alito, Thomas, and Kennedy, but is at odds with Justices Ginsburg, Sotomayor, Breyer, and Kagan.

He breaks ranks with the conservative side of the bench on seeing the penalty imposed for defying the mandate as a legitimate tax: here he asks whether the government has a reasonable claim in saying that taxing the behavior of not buying health insurance serves a government interest. He finds that it does. This relatively low level of scrutiny is justified by the fact that a tax penalty triggers only the collection powers of the IRS rather than the "full power" of the federal government. Having dismissed the Commerce Clause justification, Roberts has barred the federal government from imposing criminal penalties upon those who do not comply with the mandate.

Also significant is the style of Roberts' decision, which carefully eschews the pugnacious tone habitually employed by Scalia. One senses a Chief Justice taking seriously his responsibility to address the nation as whole, rather than just the courts or the conservative lecture circuit. He begins not only by citing the limited and enumerated powers of the American constitutional tradition, but by explaining why that principle is important: to keep the police powers of government in the states, where the electorate can monitor them more closely. He affirms that it is not the job of the judiciary to "protect the people from the consequences of their political choices," but does not apologize for exercising judicial review of the law, which is vital to preserving the principles of the constitution. The preamble to Roberts' opinion tries to find, and I think succeeds in finding, a language on the American constitutional and judicial tradition that largely rises above the vicious partisan strife that has defined conversation on the ACA for the past several years.

But in making his decision, Roberts does have to do some dancing. One of the issues before the Court is whether it can hear the case at all: under the Anti-Injunction Act, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." The courts can hear a complaint from someone who has already paid a tax and feels it was levied unjustly, but cannot hear a case on the legitimacy of a tax before it comes into effect. Roberts gets around this issue by first establishing that in its own language the ACA imposes a "penalty" rather than a "tax." Because this is not a tax for Anti-Injunction Act purposes, the Court can proceed to decide the case. But then the penalty must become a tax for the rest of Roberts' decision to hold. This he effects by a reading of the statute's intentions: if Congress wished to have the Anti-Injunction Act apply, they would have called the penalty a tax. So the language of the ACA bars use of the Anti-Injunction Act. But in deciding the constitutionality of a penalty that acts like a tax, the Court in Roberts' argument considers its practical operation, rather than the language of the statute.

Here is where the dissenters accuse Roberts of wandering in the "forbidden land of the sophists." In their logic the penalty is a penalty, not a tax. And it is a penalty arising from a constitutionally illegitimate regulation. Because that regulation is central to the ACA, and it is not the office of Court to rewrite the law, the whole thing must be rejected.

Roberts proves himself to be too savvy to take so extreme a position. But make no mistake: his is a conservative decision to the extent that it enforces limits on Commerce Clause and is eager not to allow Congress to go beyond its enumerated powers. Siding with the dissenters on the issues of the Commerce Clause and Necessary and Proper Clause assures that he has not created a precedent whereby Congress can read those clauses as expansively as it likes. The liberal side of the bench takes a more deferential view.

In one of the great gibes in the Court's history, Oliver Wendell Holmes' dissent in Lochner accused the majority of enacting "Mr. Herbert Spencer's Social Statics," a reference to the once-popular Social Darwinist whose ideas still inflect libertarianism. We might update the remark and describe today's Court as cleaving to the facile Friedmanite orthodoxy that free markets make free people. Citizens United and its progeny show how blindly fundamentalist that orthodoxy can be. The decision on the individual mandate suggests that Chief Justice Roberts is at least willing to pursue that agenda with a modicum of judicial restraint.