Nearly twelve years have passed and I still haven’t let go NFIB v. Sebelius (2012). No, it’s not because of Chief Justice Roberts’ “rescue structure,” which blends the individual mandate and penalty provisions to save the law. Nor is this a rewrite of the Affordable Care Act to allow states to opt out of Medicaid expansion. I have accepted both elements of the court’s judgment.
No, the part I can’t understand is the chief justice’s discussion of whether the Affordable Care Act’s penalty tax is a “direct” tax or an “indirect” tax. Roberts assembles four confusing paragraphs to explain how difficult and unclear the field is, and ends with a shrug. Roberts closes:
Therefore, a shared responsibility payment is not a direct tax that must be divided among several states.
But if it’s not a direct tax, what is it? Roberts didn’t tell us. He simply turned to saving structure. The joint dissent noted the chief’s failure to reach a decision on a key issue:
Finally, we must observe that rewriting §5000A as a tax in order to maintain its constitutionality would force us to confront a difficult constitutional question: whether it is a direct tax that must be apportioned according to the population of the states. Art. I, §9, cl. 4. Maybe not (we don’t need to discuss this issue); but as we all know, the meaning of the direct tax clause is not clear, and its application here is just a matter of first impression: deserves more careful consideration than the promises of the government and its supporters. The government’s opening brief did not even address this issue—perhaps because, to this day, no federal court has accepted the implausible argument that §5000A is an exercise of taxing power. When the interviewee asked the question, the government only responded with a short 21-line answer. Petitioners’ Minimum Coverage Answer Brief 25. The longest statement on this issue during oral argument was just over 50 words. Tr. Oral arginine. 79 (March 27, 2012). It is expected that the Court’s requirements will exceed Unreliable briefing and debate before deciding the difficult constitutional question of first impressions.
Roberts is an excellent lawyer. But here, the emperor has no clothes.
read Moore v. United States Give me NFIB Post-traumatic stress disorder. All three opinions cited Roberts’s incomplete analysis of the taxing power. I tremble every time.
