American Proscenium

Roberts Helps Congress Evade the Constitution

Chief Justice John Roberts left U.S. Supreme Court watchers dumbfounded.  Before the release of the opinion in National Federation of Independent Business v. Sebelius, pundits expected the healthcare case to turn on the Commerce Clause and for Justice Anthony Kennedy to be the usual swing vote.  If Kennedy sided with the conservatives (Roberts, Scalia, Thomas, and Alito), so the conventional wisdom went, then the Patient Protection and Affordable Care Act (PPACA) would be struck down as unconstitutional.

But on the last day of the Court’s term, Roberts stepped out with the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) to uphold the individual mandate as a legitimate exercise of Congress’ taxing power.

Before setting forth the delegated powers, the Constitution declares that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.”  To determine whether the monetary exaction from individuals who refuse to purchase health insurance was legitimate, the Court had to determine if the exaction was an enforced contribution to provide for the support of the government (a tax) or merely an exaction imposed as punishment for an unlawful act (a penalty).  If the latter, the exaction must be supported by an enumerated power that permitted broad regulatory action.

The PPACA commands that every “applicable...

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