It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”
This post consists of two parts: (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause. As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms. I hope others may be able to do so.
This is a short postscript to my previous posts on NFIB v. Sebelius. In those posts, I came to the conclusion that the lead opinion "works," to whatever extent it does, because it takes a static view of the structural elements of the national government ordained by the Constitution. On a dynamic view of the workings of that government, it is questionable that a law can be interpreted as an exercise of the power to lay and collect taxes if it has the effect of imposing a new tax sub rosa. The reason this outcome is questionable under a dynamic view of…
My last post explained my belief that Section III-B of Chief Justice Roberts’ opinion in NFIB v. Sebelius relies on equating a law having the arithmetic effect of raising taxes (while simultaneously offering a tax credit) with an exercise of Congress’s power to lay and collect taxes. I ended that post with a question that I have rephrased slightly here: what are the essential characteristics of a legal culture in which a person might believe (or plausibly expect others to be persuaded) that legislation having the effect of a tax hike is, solely by virtue of that effect, an exercise of the power to tax.
1. In my view, this question has particular significance because the Section III-B equation looks flatly wrong from the vantage point of political science. I do not know of any student of contemporary American politics who thinks the individual mandate would have been adopted had it been described to the public as a tax-hike-cum-offsetting-incentive-tax-credit.
In Parts III-C and III-D of his opinion in NFIB v. Sebelius, Chief Justice Roberts concludes that
[t]he 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. . . .
The Federal Government [has] the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.
1. Plenty of bandwidth has been consumed analyzing this conclusion. Many of the analyses quarrel over whether Section 5000a can “fairly” be interpreted to impose a tax on being uninsured rather than as a command to be insured. Others focus on whether the Chief Justice was right that Section 5000a (b)’s exaction is a “tax” rather than a penalty for purposes of Congress’s Article I power to lay and collect taxes. A subset of these commentators ask a follow up question: if Section 5000a imposes a tax, did the Chief Justice convincingly show that it is not subject to apportionment among the states?
While these questions are interesting and many of the answers proposed are thought-provoking, scoring NFIB v. Sebelius on technique does not strike me as a worthwhile endeavor.
I have spent the last several days reading and re-reading the opinions in NFIB v. Sebelius, hoping to find a unifying “theme” to organize all my thoughts about the case before posting about any of them. This exercise has left me with a deeper appreciation of how blogging differs from other forms of expository writing; a headache; and a vague sense that NFIB v. Sebelius is in part a case about sovereignty (as I had thought when I submitted this amicus brief (link no longer available) to the Eleventh Circuit).
Tomorrow will be the second anniversary of the Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010). I intended to mark the occasion by posting these thoughts on June 28th itself, but quite understandably, all of us will be completely preoccupied by Florida v. HHS tomorrow. (In fact, on Thursday morning, I will be on a panel analyzing the Florida v. HHS decision at an event sponsored by AEI. Readers are invited to use this link for details about attending in person or watching the live video feed.) So here goes, one day earlier than…
In FCC v. Fox Television Stations, Inc., and a companion case involving ABC, seven Justices ruled that decency standards promulgated by the Federal Communications Commission were so vague that their application to television programs broadcast by the respondents’ affiliates violated the Due Process Clause of the Fifth Amendment. On that basis, the Court voided FCC orders finding that the respondents had violated 18 U.S.C. § 1464 (and imposing what I take to be a civil forfeiture of almost $1.25 million on ABC’s affiliates). Justice Ginsburg concurred in the result on First Amendment grounds, and Justice Sotomayor did not participate in the consideration or decision in the case.
Even for someone outside the world of legal academics, it was an extraordinarily interesting week at the Supreme Court. I found two of this week’s decisions particularly intriguing. The one I will discuss in this post, Knox v. SEIU, signals the Court’s unwillingness to rely on legal fictions to justify state-compelled speech, and it may also signal a willingness to make a deeper commitment to prohibiting involuntary association, as well. The other, FCC v. Fox Television Stations, Inc., is particularly interest to me because it could have important implications in my principal area of practice (which is about as far removed from broadcast licensing as possible). But I will save a discussion of that decision for another day during my stint as a temp for the vacationing Mike Greve.