Supreme Court Holds ObamaCare Individual Mandate Unconstitutional

June 28th, 2012

By Dan Miller

BUT unexpectedly upholds ObamaCare 5:4 as permissible under the taxing authority granted to the Congress by the Constitution. Chief Justice Roberts sided with the librul wing of the Court and wrote the majority opinion. Justices Kennedy, Thomas, Scalia and Alito dissented, opining that the entire law should be struck down.

ObamaCare hard to swallowIn rejecting the Commerce Clause as a proper predicate for the Individual Mandate, the majority held that

The individual mandate … does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

Just as the individual mandate cannot be sustained as a law regulating the substantial effects of the failure to purchase health insurance, neither can it be upheld as a “necessary and proper” component of the insurance reforms. The commerce power thus does not authorize the mandate.

The basis for nevertheless upholding ObamaCare is that the penalty to be imposed is in the nature of a “tax,” even though the Congress had rejected its initial characterization as a tax and in later drafts called it a “penalty” because it would have been politically inconvenient to call it a tax. The Anti-Injunction Act prohibits attacks on a tax before it is actually imposed and the “tax” does not go into effect until 2014. This rationale had often been rejected by the lower courts and as I recall had not been argued seriously by Government counsel during oral argument before the Supreme Court. The majority did not rely on the Anti-Injunction Act, stating

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

Proceeding to the merits, Justice Roberts stated for the majority,

The Government’s tax power argument asks us to view the statute differently than we did in considering its commerce power theory. In making its Commerce Clause argument, the Government defended the mandate as a regulation requiring individuals to purchase health insurance. The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as ordering individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads “no vehicles in the park” might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.

I shall now refer to my horse as a cow and try to milk him…. The results were “unexpectedly” unfortunate for both of us. Now, continuing with Chief Justice Roberts’ majority opinion,

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” oneAs we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below. …

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (Emphasis added, internal citations omitted.)

My preliminary reaction is that Chief Justice Roberts’ majority opinion is contrived nonsense; my horse indicated that he agrees with my preliminary assessment.


I may possibly change my mind after I have read his decision more carefully. I have not yet read the entire 193 pages of the decision, multiple separate opinions/concurring opinions and dissents released and posted at the Supreme Court’s website shortly after 10:00 a.m. EDT. My internet service went down very early this morning and I could not access the document until about 11:30 a.m. EDT. I have thus far done little more than skim Chief Justice Robert’s majority opinion. When I have studied it and the other opinions, I shall try to post a more analytical article. I had hoped to do so later today but it will probably take me longer than that. It’s a $#@@^%# mess.

For now, rather than attempt to dissect the lightning-fast gurgitations and regurgitations of others who have not yet studied the multiple Court pronouncements either, here are a few of my own thoughts rather briefly, based on merely skimming the decision and my own analyses of earlier ObamaCare decisions by Federal courts of appeal presented here, here, here and elsewhere.

It seems to be a good thing that the Court at least held the individual mandate beyond the authority of the Federal Government under the Commerce Clause of Article I, Section 8 of the Constitution. That was apparently the clause relied upon in enacting ObamaCare and thereafter by the Obama Administration principally in defending it. In rejecting the Commerce Clause as a proper basis for giving the Congress authority for the insurance mandate, the Court appears to have declined further to engorge at least that section (beyond what it had previously done) to authorize the Federal Government to require the purchase of goods and services by individuals not in the market for them. To have expanded it in that fashion would have eliminated all rational bases for future judicial determinations of whether Congress had gone too far beyond the pale under the Commerce Clause. It would also have refused guidance to Congress on that matter. That part of today’s decision had been widely anticipated, at least after the oral arguments held on March 26 – 27. To what extent that part of the ruling may have any practical effect on future purchase mandates depends on further analysis of what the Court said about the taxing powers of the Congress and on how what it said may be interpreted hereafter.


Thanks, sweetie! You done GOOD!

As to the other major parts ObamaCare, they of course still stand.

obama_waterThere had been much speculation and less certainty as to what the Court would do about the many sections of the approximately two thousand page law thought to be dependent upon the mandate. Last October, I suggested here that the most likely and worst possible result for President Obama would be for the Court to reject the mandate while leaving the balance of the law standing without the necessary financial support provided by the mandate. I saw that as doing the most to put ObamaCare directly before the public, in the worst possible light, during the presidential campaign. There seemed to be little that President Obama could do to make his “signature legislation” work without the mandate and that he would thus have to campaign for reelection with the ObamaCare cadaver hanging from his neck. On the other hand, the Court’s decision leaves the question of what the Congress should and should not do in the future about ObamaCare an issue may still be important to the campaign.

In any event, with the majority ruling President Obama won’t need to find another ocean to walk upon. Now, we can probably expect yet another begging letter from the Obama-Biden campaign, this one asking for support so that he can continue to do “what is right.”

I hope to be back later with further analyses after I have studied the decision and the various separate opinions and dissents.

(This article was also posted at Dan Miller’s Blog.)

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4 Responses to “Supreme Court Holds ObamaCare Individual Mandate Unconstitutional”

  1. Tom Carter |

    This decision was a stroke of genius by the Chief Justice. Here’s what he accomplished:

    — Protected the Commerce Clause from even further stretching;

    — Found a reasonable means of finding the mandate constitutional, i.e., as a tax — which is what many people thought it should have been called in the beginning — and showed the President to be at best stretching the truth all along to avoid being seen “raising taxes”;

    — Took what is in reality a giant political mess and shoved it right back down the throats of Congress and the Executive, where it belongs;

    — And adroitly avoided another Bush v. Gore kind of decision which would have resulted in decades of the Court being pilloried as a bunch of political hacks by people (mainly liberals) who don’t know any better.

    There’s also another kind of sweetness in the decision. Of all the lists of possible Supreme Court decisions that might come out of this, as posited by wise observers and slick TV commentators, I don’t remember a single one that predicted this outcome. So, the Court shoved it down those learned throats, too.

    Way to go, Chief Johnny!

  2. Dan Miller |


    I suppose that on a political level I agree. However, the Supreme Court should consider the Constitution and the laws enacted consistently with it rather than the political implications of its decisions. That is its job; political meddling is not.

    There are some questions, and this is among them, which should not be decided by the Court politically. They should be decided on the basis of what the Constitution says and means and was intended to mean.

    There are several questions I need to try to resolve for myself, including whether the Court’s twist on the taxing power, no matter what terminology may be used in legislation, extends the power of the Congress inordinately. It well may well do so and at the moment I am concerned that it does.

  3. Tom Carter |

    Dan, I’m probably missing some of the nuances. However, it’s hard to disagree with Roberts when he says, “…it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.” Any other approach would have been seen as more political and “activist,” and I think he was wise to avoid that.

    Another point I should have added earlier: Part of the genius of the decision is that he has the liberal judges on record as agreeing that the Commerce Clause can’t be used to support something like the individual mandate.

  4. Dan Miller |

    Tom, you say,

    Another point I should have added earlier: Part of the genius of the decision is that he has the liberal judges on record as agreeing that the Commerce Clause can’t be used to support something like the individual mandate.

    Not so fast. Here is what Justice Ginsburg said at the very beginning of her separate opinion:

    I agree with THE CHIEF JUSTICE that the Anti-Injunction Act does not bar the Court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power. I therefore join Parts I, II, and III–C of THE CHIEF JUSTICE’s opinion. Unlike THE CHIEF JUSTICE, however, I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision. I would also hold that the Spending Clause permits the Medicaid expansion exactly as Congress enacted it. (Emphasis added.)

    I have not yet read her learned writings completely, but that’s a hint that she and her friends on the Court do agree that the Commerce Clause is made of rubber, to be extended as the Congress pleases.

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