Battle of Wits

I mostly hate the cultish “Princess Bride.” I hate it precisely for other peoples’s exaggerated praise for it. Typically juvenile of me. “Oh, it’s dialectic is so rich.” “Andre the Giant is superb!” Whatevs. Rocky IV, by contrast, slays every time. “Whatever he hits . . . he des- thtrrroys!” (That’s thick phonetical Russian, right there.)

But, in reading the United States Supreme Court’s decision in National Federation of Independent Business v. Sebelius, I was reminded today of one of the movie’s most famous and hysterical scenes:

Two things.

First, I have no political or personal objection to the Patient Protection and Affordable Care Act.

Second, I think the individual mandate is probably constitutional as an exercise of the Commerce Clause power, according to how existing precedent would inform the scope of that power. That being said, I think existing precedent probably takes too expansive a view of the text. Unfortunately, that ship sunk decades ago.

So, as I make the following comments, I don’t mean to say that I disagree with the result of the Opinion, but only that I fell for two of the most classic blunders: (1) matching wits with a Sicilian when death is on the line and (2) provoking an Asian land-war.

Today’s case involved a challenge to the Affordable Health Care Act. There were two main objections to it. I would comment on the Supreme Court’s treatment of only one. The principal challenge to the Act concerned the constitutionality of an “individual mandate.” The individual mandate portion of the Act says that all individuals must carry health insurance or pay an annual penalty. In other words, “Aflac!”

But, before the Supreme Court could decide whether that mandate was constitutional, it had to determine if it could even hear the case.

The Anti-Injunction Act prohibits a court from considering a challenge to a tax before that tax has actually been collected. In other words, you have to have already paid the tax before bringing a lawsuit. You can’t preemptively challenge or “enjoin” a tax you don’t like.

If the “penalty” under the Healthcare Act, for violation of the mandate, is, in fact, a “tax,” then the US Supreme Court could not entertain the case. If it was not a tax, then the Court could.

Guess what the plurality opinion concluded?

The penalty is not a tax.

Having so concluded, the Court was free to consider whether the individual mandate was, in fact, otherwise a constitutional exercise of Congressional power.

There were two possible bases for finding the mandate constitutional.

1. Congress properly included the mandate as an exercise of its Commerce Clause power;


2. Congress properly included the mandate as an exercise of its Taxing power.

(I could explain these constitutional clauses to you but I could also Ped-Egg your back with a cheese grater. Suffice it to say, Congress has to be specifically authorized by a provision of the Constitution before it can do stuff. These are the two most commonly employed authorizations of power.)

There are 9 Justices on the Supreme Court. You need 5 to agree on the outcome of any issue. None have to agree as to the reasoning.

4 concluded that the mandate was unconstitutional under either power.
4 concluded that the mandate was constitutional pursuant to the Commerce Clause power.
1 concluded that the mandate was constitutional pursuant to the Taxing power.

[Punches TI-81. Graph mode.]

That makes 5 Justices concluding that the mandate was constitutional under some power. In other words, it stays.

Wait just a second. How can a mandate penalty that’s not a tax be constitutional pursuant to the Taxing power? Nice try, Chief Justice Johnny R. Obviously, “A clever man would put the poison in his own goblet because he would know that only a great fool would reach for what he’s been given.”

I’m of course not a great fool, so clearly you did not say that, for purposes of the Anti-Injunction Act, the mandate is not a tax but, for purposes of the constitutional analysis, it is? [Nervous laughing.]

And, you must have known me not to be a great fool — you would have counted on it — so clearly I cannot choose the wine in front of me or the not-tax in front of you or the tax not in front of either of us!? [Anxiously perspiring.] Wait, what are we talking about it??

To quote the Opinion of the Court, “Hey, look over there!”

Chief Justice Roberts then concluded by saying, “I switched glasses while your back was turned!! Hahahahahahahaha!”

Let me summarize:

To allow itself the opportunity to rule on the constitutionality of the mandate, the Court concluded that the penalty was not a tax. Then, to uphold the constitutionality of the mandate, the deciding jurist, Chief Justice Roberts, then concluded that it was — a tax.

Truly, a dizzying intellect.

Performed by ipoetlaureate. Music produced by DJ Transform.

Today’s song blog here:

Shell Game