Obamacare stands — but why? Parsing the decision

We’re taking reader questions on the ACA decision. Here’s the first:

S. Alexander Smith: “Why didn’t the AIA (Anti-Injunction Act) stop them [the Court] from hearing the case if the mandate was a tax?”

Great question. For those unfamiliar, the Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” In plainer English, it means that even if you believe that your tax was unjustly assessed, you have to pay the full amount before you can bring the suit. You can see how that would help reduce the courts’ caseload.

For the question at hand, the money language (ha!) is at page 33 of the majority opinion. I’ll parse it in a second, but here it is in all its glory:

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.

So, in order: The Anti-Injunction Act was created by Congress to protect Acts of Congress from premature constitutional attack. If Congress doesn’t want a given statute to receive that protection, they don’t need to give it that protection — and C.J. Roberts’s reading of the statute, based on, among other things, the consistent use of the word “penalty” rather than “tax,” is that Congress didn’t want the Affordable Care Act (ACA) to be protected by the AIA. They created the shield; they can choose what it does and doesn’t apply to.

In contrast, the Constitutional taxation power depends not on what Congress intended, but on what, as a practical matter, they actually did. They can call it a penalty until they’re blue in the face, but while that’ll get them past Anti-Injunction Act barriers, it doesn’t fool the constitution. (Cf. Abraham Lincoln: “Q: How many legs does a dog have, if you call the tail a leg? A: None. Calling the tail a leg does not make it so.” Same deal for what is and isn’t a tax for Taxation Clause purposes.)

So they called it a penalty, and seem to have opted out of AIA protection, but they constructed it as a tax, so it can be supported by the taxing power.

Seem strained? Understandably. But, as Chief Justice Roberts points out, the Court must resort to “every reasonable construction . . . in order to save a statute from unconstitutionality.” (Page 32). Our system of government gives strong deference to the will of the people as expressed through the legislature, and judicial contortions on questions like these, where an incautious court might invalidate the will of the people, are one way that deference plays out. Even if Congress didn’t intend a statute a particular way, the Court can (and generally must) read it that way if doing so would save the statute from unconstitutionality. As the Chief Justice notes at page 6, “It is not [the Court's] job to protect the people from the consequences of their political choices.”