[Guest post by Aaron Worthing]
I posted a link the other day to Judge Vinson’s opinion in Florida v. United States Department of Health and Human Services, the biggest of the Obamacare challenges, but I have only now had a chance to read it and I think I have something to contribute to the analysis.
One of the key questions in the case is whether the mandate is a tax or a penalty. If it is a tax, it becomes much easier to defend the law from a constitutional perspective. I mean, think about it. Do you deduct interest on your mortgagewhen doing your taxes? And of course one of the reasons why you would get a house with a mortgage, instead of just renting a house, is that you can’t deduct anything from a rental. So in that situation, the government is encouraging you to enter into a specific kind of contract with a private party and raising your taxes if you refuse. Which sounds a lot like the mandate, doesn’t it? As much as I despise Obamacare, I can see the argument.
But if it’s a penalty and not a tax, it is a lot harder to justify. So in his opinion, Judge Vinson spends a lot of time analyzing the law to determine that it is penalty, not a tax. He arrives at that conclusion citing a number of facts:
- The act called it a penalty, not a tax.
- Earlier versions of this law, and similar proposals called it a tax. So as they went through their drafts, they changed the word “tax” to “penalty.”
- The law enacts a number of taxes and labels them as taxes, but not this alleged “tax.” This is an example of expressio unius, a concept I explain here.
- The findings of fact (in the statute) invoked Congress’ power under the commerce clause, but not the taxing power. Meanwhile the taxes in the act were justified under the taxing power.
- When the CBO ran its cost estimates, tallying how much the law would cost versus how much revenue it would raise, it didn’t include any money from the mandate. In other words, the CBO acted as though the mandate would raise absolutely no revenue at all.
- “[T]he Act lists seventeen ‘Revenue Offset Provisions’… and … it further includes a section entitled ‘Provisions Relating to Revenue’…. However, the individual mandate penalty is not listed anywhere in them.”
So put that all together, Judge Vinson says, and it is clear that Congress intended it to be a penalty and not a revenue-raising tax.
Now that is all well and good in classic plain language statutory construction. But what leaps out at me is that his entire analysis depends on Congress paying a lot more attention to the language of the law than they actually did. From Nancy Pelosi declaring that we had to pass the law to see what was in it, to Max Baucus claiming paradoxically that he wrote the healthcare law, but didn’t actually read it, not to mention that they manage to pass laws called “The ______ Act of ____,” it’s really hard to pretend that Congress carefully crafted this law.
Now, it is possible that Vinson was just applying precedent as he saw fit, and he didn’t want to send a message. But whether he intended to or not, anyone who reads the opinion sees that the courts following this approach are going to act as though Congress carefully crafted and scrutinized every word. So if they don’t actually devote this much attention to a statute’s language, then the law of unintended consequences will bite them right in the kiester. Whether Vinson intended to send that message, it is the message being sent.
Of course the flaw in the theory that he is trying to send a message is that Judge Vinson would have to believe that Congress would actually read what he wrote—which is itself a dubious proposition.
Another possibility is that Judge Vinson felt that the law is constitutional under the tax power, but he chose to strike it down to force Congress to take a “second look.” This is a theory of judicial review popularized by Alexander Bickel in his book The Least Dangerous Branch. The idea is that for certain laws, the courts like to strike down a law based on B.S., in order to force them to look at the law and the policy underneath a second time.
Mind you, I am not defending this approach to interpreting the constitution. In fact, I am appalled by it. But just because it is wrong, doesn’t mean it’s not happening.
On the other hand, when Congress has so clearly abdicated its duty to actually know what it is passing, a “second look” seems more justified than usual. I mean “second look” would seem like a misnomer in relation to Obamacare. First look is more like it.
And you could consider it to be either a horrible or perfect example of the Bickelian principle in operation. The fact is if the law is struck down in order to make Congress take a second (or first) look, it will be very hard to pass anything like this law twice. Unless the poll numbers are very misleading, the next Congress won’t do it, so it would have to be done during the lame duck section, which also strikes me as unlikely. So on one hand you might argue that the judge is manipulating constitutional interpretation in light of the elections. Or, you might say that the voter anger over this issue is the second look Bickel was talking about and in that case, you could say this is a perfect example of this principle in operation.
And just as with the theory that Judge Vinson is trying to tell Congress to actually read the law, his application of precedent is reasonable enough that he might be doing nothing more than applying the law to the facts. But the obvious effect of this his decision, if he strikes down Obamacare and his decision is upheld on the grounds he invoked, is to give Congress a second bite at the apple—a chance to give the matter a second (or first) look. And when person’s actions has an obviously foreseeable effect, it is generally reasonable to wonder if that effect was intended.
[Posted and authored by Aaron Worthing.]