Two cheers for Justice John Roberts

The Patient Protection and Affordable Care Act survives judicial review

John Roberts surprised many (including this writer) in voting not to nullify the Affordable Care Act, which expands access to health insurance, bars discrimination against the sick, and requires that everyone have insurance (the dreaded mandate). Instead, the chief justice sided with his more liberal colleagues in upholding the law based on respect for Congress’s power to tax. While he erred in thinking that the power of Congress to regulate interstate commerce does not justify the mandate, he at least declined to overturn a law passed through the democratic process within the legislature’s constitutional powers. By upholding an act that probably contradicts his own political preferences, Justice Roberts acted in a way that was authentically conservative rather than connivingly partisan. 

Whatever you think of Obamacare, the place to decide on it is the legislature. Taxing the population to provide broader access to health care could be good policy or not, but it is a policy decision that falls within Congress’s power to levy taxes for the general welfare. Nor do the taxes have to be uniform across the population. Congress has already enacted many laws that effectively tax people for not doing something, i.e. laws that grant tax relief to people engaging in certain activities, such as ethanol production. Some of these subsidies are arguably bad policy, but the fact that they mean higher taxes on citizens who decline to engage in the subsidized activity has not moved the court to strike then down.

For the same reason, Congress is allowed to tax (or penalize, or whatever you call it) people who decline to purchase health insurance, just as it could provide tax credits for people who chose to purchase health insurance. The mandate is really a tax, which, despite the fact that the word tax has the same connotation as nuclear holocaust in our political culture, is allowed under our Constitution. Justice Roberts improved the integrity and legitimacy of the court by eschewing the predictable partisanship that has marred many of his court’s decisions. For that he deserves two cheers.