Tuesday, July 03, 2012

Justice Roberts spares the country's pound of flesh

I had deja vu as I read John Roberts' decision deeming the individual mandate both an impermissible exercise of Congress's Commerce Clause power and a constitutional exercise of its taxing power.  I was taken back to Shakespeare's court of Venice:
A pound of that same merchant's flesh is thine:
The court awards it, and the law doth give it.

Most rightful judge!

And you must cut this flesh from off his breast:
The law allows it, and the court awards it.

Most learned judge! A sentence! Come, prepare!

Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh:'
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.

O upright judge! (Merchant of Venice IV. 1. 298-312).
Roberts' decision has a similar structure, except that its Catch-22 enables rather than forbidding the act in question. Congress cannot command activity, but it can tax inactivity:
The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32...

...the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40 (pp 3-4).
Roberts seemed willing to extract a pound of flesh from the ACA -- and from the that substantial part of the body politic that has no health insurance. He was not willing to extract the blood -- i.e. lay waste a mammoth effort of the legislative and executive branches to deal with a pressing national problem -- or, perhaps, to completely deny to the uninsured the national effort to expand coverage.

Recent stories citing anonymous inside sources have suggested, first that Roberts originally sided with the Court's conservatives, and then that he in fact wrote the first three quarters of a draft of the conservative justices' opinion (now dissent), which in its current form strikes down the entire law. Who knows whether that is true, or to what extent it's true. Perhaps Roberts' initial inclination was to extract the flesh, via mandatechtomy, without bleeding the ACA to death. Or perhaps, as he prepared to draw blood, he thought that the personal "goods and lands" he really cares about -- his legacy -- might be self-forfeited, and drew back.  Perhaps too he initially felt that he was offering his conservative brethren as good a deal as Antonio offered Shylock: the mandate struck in a decision written by the Chief Justice. And perhaps he felt that their response -- strike the whole law or no deal -- was as intransigent as Shylock's (though this last could not be true if Roberts really did write the bulk of anything substantively similar to the existing conservative dissent).

While I'm indulging in speculation, I would like to think that the fate of America's 50 million uninsured factored into Roberts' decision. Perhaps he heard something like Portia's appeal to Shylock's better angels:
The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice (IV. i .183-195)
It pleases me to think so.

[edited and somewhat altered after a cold read...]

Morning afterthought: viewed another way, of course, Roberts' strike-down of Congress's ability to condition states' Medicaid funding on the ACA's Medicaid expansion is the pound of flesh that Roberts did extract. It looks like many millions will suffer as a result.


  1. A hit, a very palpable hit.

    Splendid insight, Andrew.

    Now, of course, the minority's view of the Chief Justice's actions would necessarily be of a different character:

    Lady Macbeth:
    Why did you bring these daggers from the place?
    They must lie there. Go carry them, and smear
    The sleepy grooms with blood.

    I'll go no more.
    I am afraid to think what I have done;
    Look on't again I dare not.

    Lady Macbeth:
    Infirm of purpose!
    Give me the daggers. The sleeping and the dead
    Are but as pictures; 'tis the eye of childhood
    That fears a painted devil.

    And Roberts, daydreaming during his history of the U.S. Supreme Court lecture class on Malta:

    But break, my heart, for I must hold my tongue.


    The time is out of joint; O cursed spite,
    That ever I was born to set it right!