Scope Restrictions vs. Magnitude Restrictions on Congress (don’t fear the broccoli tax!)
Traditionally, when we think about constitutional limitations on Congress, we think about scope restrictions: Congress is allowed to regulate commerce, it’s not allowed a general police power; it’s allowed to establish copyrights, it’s not allowed to engage in political censorship; it’s allowed to take property for public purposes, not for private purposes. But the Constitution contains magnitude restrictions as well; the most obvious is excessive bail/fines clause of the Eighth Amendment, which doesn’t restrict what Congress can punish, but how severely it may do so.
The Chief Justice’s majorityish/pluralityish opinion in NFIB v. Sebelius is another instance of a magnitude restriction. In a paper forthcoming in Public Affairs Quarterly, Death and Taxes in NFIB v. Sebelius, I defend his case for upholding the mandate as a tax, which hinges on the notion that the mandate leaves citizens with a “lawful choice” to not buy health insurance, and doesn’t make those who so refrain into “outlaws,” as an apt expressive distinction between pigouvian taxes, which don’t condemn those engaging in the disfavored activity, and regulations invoking the state’s authority to command, which do. (n.b., the online version is not quite as good as a substantially revised subsequent version that I’ve prepared for an edited volume. For those who are interested, I’ll happily pass along the latter.)
Christopher Robertson, kindly mentioning my paper on the Petrie-Flom Center blog, doesn’t, I take it, think that’s enough of a justification for upholding the mandate. On his reading of me, I’ve suggested that Congress’s power to tax behavior it doesn’t like is limited only to the extent that it can’t combine a tax with the wag of a finger and say “naughty, naughty.” But “the Framers were pragmatists — they cared about liberty actually experienced, general welfare actually achieved. Or, at the very least, that is what we should care about now.”
But if you think that being able to avoid buying health insurance is a kind of “liberty,” then Roberts’s opinion does actually achieve quite a bit of it. I don’t think we give enough credit to the substantial magnitude restrictions that are built into the tax power.
The most obvious is that taxes, of course, have to be financial. Congress might have the power to tax nonconsumption of broccoli, but it doesn’t have the power to throw you in jail for not eating broccoli, or have the Department of Justice get a civil injunction ordering you to eat your broccoli. And this makes a big difference in terms of Congress’s ability to bring about behavioral change, especially when we’re considering, as in the health care context, economic decisions. At most, Congress can change each individual’s economic calculus for buying health insurance: it can make going uninsured a bit cheaper and being insured a bit more expensive.
But that doesn’t mean that the expressive distinction on which I focus in the paper is nothing. There are at least two major expressive differences between taxes and other sorts of regulations that impose actual restrictions on Congress’s power.
First is the finger-wagging point that Robertson notes. This matters. Law has the power to (however uncertainly and slowly) shape our social norms. By outlawing something, Congress says that those who do it are subject to criticism from their neighbors; in a world where many of those neighbors think that it’s wrong to break the law, this can be an effective way of deploying social sanctions to back up the state’s commands. (In Iowa City, there’s a “pedestrian mall” running through the center of downtown. I’m told there’s a law against bicycling through it—told often, that is, by busybody passerby who yell at me every time I bike through it anyway. I don’t particularly care that I’m subject to mild social disapproval for breaking that silly law, but others doubtless do, and the city of Iowa City doubtless gets more compliance in virtue of that fact.)
Second is the idea that law claims authority, in Raz’s sense: by enacting a law in the form of a command, Congress tells each citizen to ignore their other reasons for or against buying health insurance or eating broccoli, and to just do what they’re told (this is what Raz means by saying that law claims to give “exclusionary reasons”). For a citizen who believes that he or she is under a moral obligation to obey the law (regardless of the small army of philosophers who deny that any such obligation exists), this is a much stronger kind of command than just “if you don’t buy health insurance, we’ll charge you this amount of money.” Particularly, it’s a kind of command that can conflict with other moral obligations that a citizen believes him/herself to have. For example, if you have religious objections to buying health insurance, but you think you have a moral obligation to obey the law, then a congressional command gives you a moral conflict in a way that a tax doesn’t. By imposing a tax, Congress can make it more expensive to follow your conscience, but it can’t outright forbid you from doing so, or conscript your own fidelity to the laws in support of its social purpose.
In these ways, the power to tax is much weaker than the power to command.