Giving Voters Control

JFMK School of Government

The Supreme Court’s decision in National Federation of Independent Business v. Sebelius was framed in every possible way well before the final announcement on June 28. Each political lobby had prepared its spin and readied itself for both victorious congratulations and sulking vitriol in anticipation of the tense moments after 10 a.m.

By the time of the decision, opposing ideological factions had congealed into well-formed parties. Conservatives would rejoice if President Obama’s healthcare law was overturned and cry foul if it was deemed constitutional, while conversely, progressives would denounce a ruling of unconstitutionality as illegitimate and only deign to acknowledge the exalted jurisprudence of the Supreme Court if it ruled in their favor.

In the days immediately after the ruling, these early reactions have proved naïve. The decision is so complex that Fox News and CNN both initially interpreted it along the lines of “Supreme Court kills individual mandate.” At first, the gut responses were as expected. Conservatives have deplored Chief Justice Roberts as an ignominious turncoat. Many worry he will fall down the Souter or, God forbid, Warren rabbit hole of justices who decide to cast off their limited government garments once they don the secure black robes for life. Liberals were jubilant at the validation of their progressive hero’s signature policy, and breathed a sigh of relief that what they decry as iniquitous Koch brother political interests have not yet hijacked the highest court in the land.

Just a few days later, those id-powered responses are not so crystallized. Conservative pundits are increasingly coming to realize that this is a long-term prize when it comes to strict constructionist interpretations of the Commerce Clause, as well as the Necessary and Proper Clause. Obama’s Solicitor General tried to pass the mandate off on both accounts before throwing the “taxation powers” argument as a Hail Mary. Progressives, while still riding high on the success of government-influenced social policy, may start to realize that implementing their agenda through taxes and the Internal Revenue Service, while being permissible in the eyes of the Founding Fathers, may be a bit harder to play among the American public.

This is what the Supreme Court’s ruling truly expresses. The Court did not want to get involved in politics or judgment of what is good for the American people. Congress very clearly maintains power to influence social policy by enacting duties on behavior that is socially undesirable. An American citizen pays higher taxes if he or she buys cigarettes and lower taxes if he or she donates to charity, has children, or owns a home. Every so often there is political uproar over the multitudinous loopholes in the tax code. Yet, missing from the argument to close those loopholes is the claim that tax credits are inherently unconstitutional.

Assertions that the result of NFIB v. Sebelius opens the door for extreme government overreach fail to see how long ago that ship has sailed. Back in the day, there was serious judicial discourse regarding Congress’s power to “lay and collect taxes, duties, imports, and excises.” That discourse resulted in the Sixteenth Amendment to the Constitution, supplementing the taxation powers vested by the Constitution with the ability to collect revenue from people’s incomes. Prior to 1913, government had to finesse levying of taxes by calling them excise taxes and tethering them to numerical apportionment by state.  Afterwards, Congress had near unlimited power to raise funds by legislative imposition. In fact, when the FDR administration was debating whether to frame the Social Security Act as sanctioned by the Commerce Clause or the Taxation and Spending Clause, his Committee on Economic Security opted for the latter. This proved to be a prudent move since the Supreme Court, recognizing the extensive taxation powers that had been solidified two decades before, recognized its constitutionality by a wide 7-2 margin.

When the Patient Protection and Affordable Care Act was contested in court, few questioned Congress’s ability to tax however it pleased. The opposition was based on the notion that any mandate is an overextension of the Commerce Clause. This reasoning turned out to be sound and—in a surprising turn of events—deemed so in a court decision accepted by progressives. Such an outcome was unthinkable a few days before the decision, as liberal opponents primed the result with reminders of the perceived illegitimacy of Bush v. Gore and a tarnishing of Antonin Scalia’s legal judgment.

In the end, the Supreme Court emerges unsullied. It extricated itself from accusations from the left. And, although the Chief Justice currently faces visceral acrimoniousness from the right, that contempt is slowly ebbing into a mixture of confusion and hopefulness. While some swear to never forgive the Bush appointee for his betrayal, others give him credit for playing the longer gambit.

When it comes to the Court and the Constitution, little has changed. The Commerce Clause remains limited, while the taxation one subsists as practically illimitable. The Supreme Court is still largely trusted and will probably continue to proclaim conservative decrees along the lines of the per curiam issued overturning spending constraints in the Montana political arena.

The Supreme Court decision does not, however, mean everything remains the same. It could have powerful implications on the two policy-oriented arms of the American government. As Chief Justice John Roberts pointedly notes in his majority opinion, justices “possess neither the expertise nor the prerogative to make policy judgments.” That power rests with Congress, whose responsibility it is to make the policy judgments, and with the executive, who has the authority to implement it.

Unlike the judicial branch, the lawgivers in the legislative and executive branch receive this prerogative directly from voters. Democrats in Congress pushed an unpopular healthcare law through the Senate. Now they must respond to voters who have full knowledge that the mandate is indeed a tax. In a country where the legislative has infinite taxing power, the forces of democracy—not the forces of a conservative Court—serve as the only restraint.

John F.M. Kocsis ’15, a Crimson editorial writer, lives in Eliot House.

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