Russ Latino: The Supreme Court Erred in Its Decision on the Affordable Care Act

The following is an exclusive from attorney, conservative political analyst, and our newest Mississippi PEP contributing columnist Russ Latino. Look for more contributing columnists over the coming weeks and months from Mississippi PEP as we continue to give readers insight into state government and political thought you can get nowhere else.

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BY: Russ Latino

For months, pundits, prognosticators and “scholars” have speculated about the outcome of the Supreme Court’s review of the Affordable Care Act, commonly referred to as “Obamacare.”  On Thursday, June 28, 2012, that speculation was laid to rest as the majority of the law, including controversial provisions requiring citizens to either purchase insurance or face financial penalty, was upheld.

The reaction to the decision was a philosophical and political “Tale of Two Americas.”  For some it was the “best of times,” as they jubilantly construed the opinion as a validation of the public policy reflected in the legislation.  For others, it was the “worst of times,” as they struggled, with much dismay, to understand why Chief Justice Roberts strayed from the oft-labeled “conservatives” on the High Court and sided with the equally oft-labeled “liberals” to uphold the unpopular and intrusive law.

For many, the discussion turned to whether the Affordable Care Act would ultimately serve its intended purpose and how the Supreme Court’s decision would impact the coming presidential election.   For many fewer, the real issue was the long term implication of the seemingly unfettered extension of federal power over our day to day lives.

The issues before the Court on the individual mandate were varied and complicated.  The first issue the Court had to deal with was whether the Anti-Injunction Act prevented its consideration of the lawsuit.  The Anti-Injunction Act prevents a challenge to any tax implemented by Congress before the tax is actually paid.  Under the Affordable Care Act, both the individual mandate and the penalty associated with it do not go into effect until 2014—meaning if the penalty is a “tax,” it has not yet been paid by anyone.  In issuing its opinion, the Court determined that the Anti-Injunction Act did not prevent a decision since, in the Court’s view, the penalty was not a “tax” for purposes of the Anti-Injunction Act.

The second issue the Court dealt with was whether the penalty associated with the individual mandate was a permissible “tax” under the U.S. Constitution.  Given the Court’s own finding that the penalty was not a “tax” for purposes of the Anti-Injunction Act, it was intuitively reasonable to assume that the Court would not label the penalty as a “tax” under the Constitution and, thus, would not have to consider its permissibility.   That logical presumption did not, however, hold accurate.  Despite finding that Congress had not clearly enough intended the individual penalty mandate to be a “tax” for purposes of the Anti-Injunction Act, the Court then went on to find that the penalty could be “reasonably construed” as a tax for purposes of its constitutional analysis.  In other words, the majority recognized no clear congressional intent for the individual mandate penalty to operate as a tax, but nonetheless interpreted the legislation as if it had been so written in order to then address its constitutional permissibility.  It is a prime example of result-oriented judicial activism.

Having found the individual mandate penalty to be a “tax” under the Constitution, the Court turned to addressing its permissibility.  Using examples of how Congress has been permitted to tax citizens’ activities in the past, the Court ultimately found that the individual mandate penalty was a permissible tax under Congress’ broad taxation power.  The Court once again erred in this determination.  First, it is of note that this penalty is tied not to a citizen’s activity (i.e. engaging in commerce), but to a citizen’s inactivity (i.e. failing to buy a product from a private company).  Second, Congress power to lay and collect taxes must necessarily be tied to a legitimate, constitutionally authorized function.  In other words, the power to tax is inextricably intertwined with that portion of the Constitution that spells out Congress’ limited powers, such as Congress’ power to regulate interstate commerce (Art. 1, Sec. 8).  In this particular instance, the Court found that the individual mandate was not authorized by the Commerce Clause.  In other words, that the Commerce Clause did not afford Congress the power to make Americans purchase a product.  There is, likewise, no other power spelled out in the Constitution that would permit the mandate.  Since the “tax” at issue is tied to an illegitimate function of Congress, it too is illegitimate.

By holding to the contrary—that taxes can be collected to prevent or compel behavior of citizens in a manner not otherwise authorized by the Constitution—the Court has rendered the limitations on congressional power placed in the Constitution utterly meaningless.   There is nothing Congress cannot make you do at the “barrel” of a tax.  Acceptance of this idea means buying either that the Framers designed our federal government to be one of unlimited power or the liberal notion that the Constitution is a living, malleable document.  It means disregarding the entire historical record surrounding our founding, as well as the purpose and construction of the Constitution.

In response to the opinion, many conservatives have attempted to find the “silver lining.”  Some have focused on the value of the Affordable Care Act being upheld under Congress’ taxation power and not the Commerce Clause.  In fairness, the opinion’s treatment of the Commerce Clause actually shrinks its scope and may lead to some successful challenges of overreaching federal laws (provided they do not include their own penalties/”taxes” for noncompliance).  However, if the discussion is solely about the scope of the federal government’s power post-decision, then the fact that the law was not upheld under the Commerce Clause provides no solace.  Congress no longer needs an expansive Commerce Clause.  It can simply attach a penalty for those who do not comply with its otherwise unconstitutional mandates and compel behavior.  The only thing that has changed is the avenue.  The fact that the use of this new power may be tempered by how unpalatable tax increases are does not negate the existence of the power.  The power is even more dangerous in light of the fact that the Supreme Court has shown a willingness to let Congress lie about its intention and correct the mistake on the back end.

Others have argued that the Chief Justice acted out of concern for the integrity or image of the Court in going out of his way to uphold the law to avoid accusations of partisanship.  This argument may well be true, but does not provide any legal justification for the decision.  The whole point of lifetime appointments to the Supreme Court is to prevent or reduce the effect of political pressure on the decisions of the Court.  Justices are not appointed to be politicians, to be diplomatic or to worry about their image.  Justices are appointed with the sole expectation that they will act with fidelity to the Constitution.  If doing so creates the appearance of ideological solidarity, then so be it.

Still others have contended that the decision will have a positive political impact for Governor Romney.  While this may also be true (time will tell), it does nothing to negate the precedent of the Court’s decision in expanding the power of Congress and is not likely to lead to the Affordable Care Act, itself, being repealed.  The potential of getting 60 votes in the Senate before the benefits associated with the Affordable Care Act begin to be doled out is small.  Once the benefits begin to be doled out, it is going to be even harder, as people will grow accustom to this new round of “free stuff” from the government, will come to depend on it and will even come to feel entitled to it.

How far the Court’s decision will reach is unknown.  How and to what extent Congress will abuse the taxation power moving forward is equally unknown (a fact which those celebrating the decision should consider…can we say “tax on everyone who does not own a gun”?).  What is known is that Congress, if willing to impose additional “taxes” on inactivity, now has no constitutional limitation on what it can make you do.  So for those of us who think our constitutional system of limited government is important to the preservation of liberty, the decision is proper cause for mourning.

About Russ Latino: Russ is an attorney with Wells, Marble and Hurst Law Firm in Ridgeland, Mississippi. Prior to attending law school, Russ was a Dean’s List scholar at Tulane University, where he earned a B.A. in Political Science and History. He is a passionate conservative political analyst and a student of the revolutionary founding of the country. He can often be heard filling in as a guest host for local conservative talk radio.

Russ lives in Madison County with his wife, Ann Harlan.

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• Senator Chris McDaniel talks to Mississippi PEP about Obamacare and what he expects from the Supreme Court (MississippiPEP.com)

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