More Quick Impressions

The Medicaid issue (on which I am not an expert) strikes me as quite interesting and important.  This represents the first time since the 1930s that the Court has enunciated any real limit on the Spending Clause (though the practical effect of this may be insignificant.)

I’m curious now to go back and look at what the lower courts said about the taxing power argument.  Basically, I assumed that the tax and commerce arguments would rise and fall together, so I’m surprised to see that Chief Justice Roberts went in a different direction. If you buy what he says at pp. 41-44 of his opinion, then there is a meaningful distinction between the two points.  Note that in footnote 11, though, that he concedes that failure to pay the tax can lead to prosecution for tax evasion, but that is not constitutionally relevant.

Finally, Justice Kennedy must be awfully deflated–he’s not the swing vote anymore.

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3 Responses

  1. AF says:

    With apologies, I want to comment on your post on Balkinization, where you write “Following the law and reading the Affordable Care Act in the most natural way (failing to buy health insurance leads to a penalty, not a tax) would have forced him to strike down the individual mandate.”

    What law, in particular, would have “forced” Justice Roberts to strike down the individual mandate under the Commerce Clause?

  2. Gerard Magliocca says:

    Well, under his view that the mandate was not authorized by any other power.

  3. AF says:

    Gotcha. I thought you were endorsing the idea that Roberts had a choice between following the law and reaching the right result. In fact, the dilemma, if there is one, arose only because of his choice to adopt a novel and questionable view of the law. But kudos to him, he was very skillful in freeing himself from an illusory trap of his own making. In the end, he did the right thing.