Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 28, 2012

Roberts' Trojan Horse?

Is the Supreme Court's health care decision a Trojan Horse for those who favor an expansive federal government?  Discuss.


Scaperlanda, Mike | Permalink

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It may be the commerce clause version of Locke v. Davey, an opinion in which I think the wrong party won but the principle put in place was a near fatal blow to Everson, IMHO.

That was an opinion by the great conservative minimalist, Chief Justice Rehnquist. His clerk, John Roberts, is following in his predecessor's footsteps.

Posted by: Francis J. Beckwith | Jun 28, 2012 11:53:54 AM

Since the Supreme Court declared in principle the mandate is a tax, how does this effect Religious Institutions in regards to the contraception mandate?

Posted by: N.D. | Jun 28, 2012 12:32:57 PM

Hi N.D.,

As far as I can ascertain with my layman's eye, the HHS mandate remains in place. For it to have been struck down, the whole ACA would have had to go. And that obviously didn't happen. The fact that the insurance mandate is now a tax doesn't affect the HHS mandate. However, any of the lawyers can correct me.

Professor Scaperlanda,

Maybe it is because now it will rally the anti-Obama forces, who will forget that in this case, the federal government is only expanding because of the private market's failure to act. I was discussing this last night with a friend who is in the hospital business and he said that allowing health plans to sell across state lines would have been a big help. However, the GOP has failed to take up this reform during the years that they've had one or two branches of Congress. When the advocates of private initiatives in health care don't take actions such as these, they shouldn't be surpised when the pro-government forces choose to act.

Posted by: Edward Dougherty | Jun 28, 2012 1:05:13 PM

Thank you for your reply, Edward. To clarify my statement, I am wondering since it is true that The Supreme Court has declared that the individual mandate is in principle a tax, then are Religious Institutions exempt from the mandate and free to purchase Insurance from an Insurance Company that does not provide contraception coverage?

Posted by: N.D. | Jun 28, 2012 1:47:26 PM

P.S., I am assuming that the "compromise" that all Insurance Companies must provide contraception coverage has not yet been implemented and was not part of this ruling.

Posted by: N.D. | Jun 28, 2012 2:05:47 PM

I am wondering since it is true that The Supreme Court has declared that the individual mandate is in principle a tax, then are Religious Institutions exempt from the mandate and free to purchase Insurance from an Insurance Company that does not provide contraception coverage?

No. The problem is that no "insurance company that does not provide contraception coverage" exists anymore. The HHS regulations promulgated under the PPACA require that all insurers provide this coverage.

On the general question, I say yes and no. Yes, because there are five votes for putting another lid on the commerce clause and seven votes for putting limits on federal coercion of states.

But no, because the Court has announced that the federal government can do anything---literally anything not proscribed by the bill of rights---simply by clever drafting. What, we want to implement a national ID system and require internal passports? Well, you don't have to go along, but be sure to make your Participation in Protecting Americans' Identities Payment next April 15. The taxing and spending power was already running amok, now it's just ridiculous.

Posted by: Titus | Jun 28, 2012 2:11:22 PM

The Court’s decision today contains some of the most muscular enumerated-powers and constitutional-structure-matters language of any (majority) opinion in decades. Judicial conservatives, it seems me to me, should be thankful (and grateful to the Chief Justice) for the approach taken by a majority to the Necessary and Proper Clause and to the so-called Spending Power, and should probably see this “good” about the ACA decision as outweighing the “bad” (i.e., that, because the mandate is, contrary to the President’s earlier assurances, a “tax,” it will have to be repealed legislatively and electorally, rather than judicially.) The ruling on the Medicaid expansion, in particular, is a big “win” for federalism, it seems to me.

Posted by: Rick Garnett | Jun 28, 2012 4:41:51 PM

Speaking as a layman, I don't see it that way, Rick Garnett. I see it the way Titus does. I don't understand how the federal government -- or any government -- can tax someone for something they don't have. How can they do that? A tax is always placed on something someone owns or purchases -- property, sales, vehicle, income, etc. If I don't make a purchase, how can the government tax me? "Taxing" me for failing to purchase something is not a tax. That's a penalty for failing to follow a mandate.

As was stated by many others before this decision came down, what it comes down to is that our mere existence is taxable, and that's just plain wrong.

Posted by: Thomas A. Szyszkiewicz | Jun 28, 2012 6:50:06 PM

I have a worry similar to that of some others. I have trouble seeing any difference in practice between taxing me for not doing something and fining me for not doing something. I've heard the argument that now at least the legislators will have to call it a tax, but I don't see why that's true: the SCOTUS will do that for them. Legislators can call it a penalty or a gift or whatever they want, and as long as it seems sufficiently tax-like to the Court, it would survive scrutiny. I say "would" rather than "will" because no one would bother appealing. So now Congress can penalize all kinds of omissions--not buying a car from GM, for example!--and count on the Court to say that it's not really a penalty so everything is OK.

I'd like to be wrong about this!

Posted by: Michael Gorman | Jun 28, 2012 7:09:00 PM

Quick clarification: I know that the ruling didn't hold that Congress's ability to compel (encourage?) action via taxation is completely unlimited. But I'm wondering where the limitations are, and it seems to me that under this ruling, Congress's power is pretty amazingly extensive. (The GM business was just a joke, of course.)

Posted by: Michael Gorman | Jun 28, 2012 7:19:01 PM

"Judicial conservatives, it seems me to me, should be thankful (and grateful to the Chief Justice) for the approach taken by a majority to the Necessary and Proper Clause and to the so-called Spending Power, and should probably see this “good” about the ACA decision as outweighing the “bad” (i.e., that, because the mandate is, contrary to the President’s earlier assurances, a “tax,” it will have to be repealed legislatively and electorally, rather than judicially.)"

There's nothing to be thankful for here. Upholding this massive piece of rent seeking legislation that ultimately benefits big insurance companies is destructive of the common good and will further impoverish the nation. Yah, yah Roberts said it was a tax, but he did not have to. Yes Roberts will go down as one of those "great jurists" who objectively made a Hobbesian decision.

Today Chief Justice Roberts stands on the side of those who have "erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance." Guess where that quote came from? A document far superior to the Constitution.

This decision will be one of the many factors that will ultimately cause a national divorce, because "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

This legislation, much much more so than the stamp acts are not light and transient causes, particularly in the view of many in States like Texas, et al.

Posted by: CK | Jun 28, 2012 10:53:59 PM

I am hoping, based upon what The Justices believe would make a mandate unconstitutional, the contraception mandate will be found unconstitutional, and we could have another 9-0 decision.

Posted by: N.D. | Jun 28, 2012 11:49:21 PM

Michael Gorman and others on the tax question -- what you say about Congress's broad taxing powers is true, but it isn't something that just occurred in this case. It's been the case for many years -- really since the 1930s -- that the Court has held that Congress's taxing powers are broad (e.g., US v. Butler). That was a change from the previous law on the subject, which tried to create various sorts of doctrinal limits on the power to tax (e.g., "direct" v. "indirect" taxes). These limits proved difficult to administer. One of the most important cases involving the power to tax is a 1950s decision involving bookies and gamblers, which held that even regulatory (i.e., not revenue raising) taxes are constitutional so long as there is no provision in the regulation "extraneous to any tax need." There has been a limiting doctrine of regulation or punitive measure v. revenue raising, and it may be the case that the ACA decision further weakens that doctrine.

All of this to say that to the extent that one is seeing a broad taxing power, this is not really a new thing, in my view. And, to Prof. Gorman, I still think there are substantial political costs to calling something a tax. Now the President (per Patrick Brennan's post) is going out of his way to deny that the mandate is a tax. That is only apt to increase the lack of popularity for the mandate going forward, making its repeal by future Congresses more probable (I'm not saying that repeal is probable -- only that the label "tax" is one from which most politicians flee, including the President). As others have written, it was politically meaningful to uphold the mandate on that particular ground.

Posted by: Marc DeGirolami | Jun 29, 2012 7:23:42 AM

@Prof. Girolami -- thanks! that's very helpful.

@N.D. -- Perhaps the Obama Administration could then just declare that there's no contraception (etc.) mandate; there's just a tax on employers who don't cover contraception (etc.). Or maybe this wouldn't work for some reason.

Posted by: Michael Gorman | Jun 29, 2012 9:35:14 AM

Michael, they could, but then, now that it is clear that The Supreme Court is in our court in regards to the contraception mandate, the Obama Administration should declare there is no longer a contraception mandate, and leave it at that:)

Posted by: N.D. | Jun 29, 2012 10:41:32 AM

Why is it "clear that The Supreme Court is in our court in regards to the contraception mandate"? I'm hoping you're right, but I'm not sure I see your reasoning. Is the idea that if the mandate is a tax, then since religious organizations don't pay taxes, they aren't subject to the mandate?

Posted by: Michael Gorman | Jun 29, 2012 12:41:02 PM

That's actually a question that I've been having, Michael Gorman -- since this is a "tax", by the Supreme Court's decision, is it a "tax" that tax-exempt organizations don't have to pay, thus eliminating part of the religious freedom question?

Posted by: Thomas A. Szyszkiewicz' | Jun 29, 2012 1:22:04 PM

Michael and Thomas and ND: The so-called "individual mandate" and the HHS requirements that employers cover contraceptives are two different things. The Court did not rule that all mandates are taxes, which is what Thomas's comment seems to apply.
It held only that the provision requiring individual to purchase insurances could be viewed as a tax because the only consequence of nonpurchase of insurance was payment of a tax and the statute need not be read to declare that the failure to purchase insurance is unlawful. The mandate on employers in the HHS regulations is very clearly framed as a mandate all employers must comply with and noncompliance with which is unlawful. So yesterday's opinion does nothing to eliminate the religious liberty issue.

Posted by: Susan Stabile | Jun 29, 2012 2:48:42 PM

@Susan Stabile
I think I've not been very clear--or maybe I'm even more uninformed than I realized.

I'd thought that the ACA requires employers (with certain exceptions) to offer insurance, and that the HHS regulations are just a clarification of what precisely that insurance has to include. To be sure, the HHS regs give me reason to be unhappy about the employer mandate, but my question about tax vs. mandate was aimed at the employer mandate itself, not about the particular shape given to it by those regulations.

Maybe I was wrong in the first place--maybe there was no employer mandate before the HHS regs. Maybe the original ACA requires individuals to buy insurance (or, on Roberts's reading, taxes individuals who don't buy insurance) but says absolutely nothing about employers offering insurance--no tax, no mandate+penalty, nothing.

If, however, I was right that prior to the HHS regs, the ACA has an employer mandate (or what I would have called an employer mandate), then I was trying to ask whether this mandate, for employers and not individuals, could also be seen as a tax rather than a true mandate.

Posted by: Michael Gorman | Jun 29, 2012 3:16:52 PM

Sorry, Michael, I thought you were talking about the contraception coverage mandate, which is in the HHS regs. I misunderstood your point originally but think I understand it now.

You are correct that the ACA requires that employers (with some exemptions) either offer health insurance or make payments to the federal government if they do not offer health insurance to their employees.

I take it you want to argue that religious employer can refuse to provide their employees health insurance and then refuse to make the payment to the federal government on the ground that the payment is a tax and the religious entity is exempt from paying the tax.

Although it may seem inconsistent, I suspect it unlikely that the employer payment would be characterized as a tax such that the religious entity would be exempt from paying it if they refused to provide health insurance. Remember, the Court did not say the shared responsibliity payment (the payment individual make if they don't purchase insurance) is a tax, just that it could be considered a tax and not a penalty for constitutional purposes.

In addition, all employers (including religious entities) always had the option to not provide insurance. The objection of the Church and others has always been that opting-out of providing insurance is not an acceptable solution (and not primarily because of the financial penalty imposed for doing so).

Posted by: Susan Stabile | Jun 29, 2012 4:26:38 PM

Michael, my initial question in regards to the mandate had to do with The Supreme Court ruling that in principle, the mandate was a tax, and thus was based on a similiar train of thought as yours, but then I read Father Robert's post and realized that based upon the reasoning of all The Judges in regards to their view as to what they believe would make a mandate unconstitutional, those Justices who believe the individual mandate is unconstitutional to begin with, are not going to then state that mandating contraception must be included in every health care plan is constitutional, and those who believe the individual mandate is in principle a tax, have stated that "a mandate to purchase a particular product would be unconstitutional, if...it interfered with the free exercise of religion". Mandating that every Insurance Company must provide contraception and thus one can only purchase Insurance from a company that is a contraception provider, is an infringement on our Religious Liberty.

Posted by: N.D. | Jun 29, 2012 4:46:41 PM

@Susan -- Thanks, this is helpful. Speaking as someone whose health coverage comes from a Catholic institution (CUA), I'm certainly not itching for a cancellation of coverage! I was just wondering whether the cancellation, if it happened, would also be accompanied by a fine/tax (which would indirectly come out of my paycheck, obviously, making it that much harder for me to find coverage elsewhere). Partly I was wondering this for practical reasons, and partly just because I thought it might shed light on what the Court has and hasn't ruled.

@N.D. If you and I are thinking of the same comment by Justice Ginsberg, I think she specified that it wouldn't be constitutional to have a mandate that "impermissibly" infringed on the freedom of religion. Understandably enough, she want to give herself some wiggle room.

Posted by: Michael Gorman | Jun 29, 2012 5:39:46 PM

Michael, we only need five Justices to declare that the contraception mandate is unconstitutional. With Justice Roberts vote, that makes five. I'm still hoping it will be 9-0.

Posted by: N.D. | Jul 1, 2012 10:58:27 AM