In the Bush 41 administration, when he had been deputy SG, he had signed briefs in some controversial cases, most notably in Rust v. Sullivan, supporting the Bush administration policy that restricted medical personnel paid with federal taxpayer dollars from advocating for abortion. But no one who knew him believed those were necessarily Roberts’s own views. In his time as a government lawyer, in his years leading the appellate practice at one of the nation’s top law firms, and then in his time on the D.C. Circuit Court of Appeals, Roberts carefully avoided controversy. He was someone whom everyone knew wanted to be on the Court, and he lived a life to avoid any of the pitfalls that might derail that nomination.
In the other room at the White House was my former boss, Judge J. Michael Luttig. Luttig was the leading conservative judge of his generation. Appointed to the Fourth Circuit Court of Appeals at age thirty-six, he was fearless, brilliant, and deeply principled. In case after case, he followed the law, explaining the constitutionality of his decision in scholarly detail and enduring the pounding of criticism that inevitably results from standing for constitutional principle.
George W. Bush, like his father, when presented with the choice between a judge with a long, proven conservative record and the battle scars to demonstrate his fidelity and another judge with a much quieter and more opaque record, chose the easier path. But one can be forgiven for asking, what if President Bush had chosen the road less traveled?
To date, John Roberts has proven a somewhat more conservative chief justice than many of the activist judges described in this chapter. His first glaring deviation consisted of his two decisions upholding the Obamacare legislation. In both of those decisions, he engaged in legal gymnastics to achieve what I believe was a political outcome. In the first Obamacare decision, plaintiffs challenged the law and, in particular, the individual mandate that imposed a penalty on Americans if they did not purchase private health insurance. That law was challenged as exceeding the federal government’s constitutional authority to regulate commerce between the states. The plaintiffs argued that forcing someone to purchase a product they do not have, which they do not want, and which they may not be able to afford, is not constitutionally permissible “regulation of interstate commerce.”
The Supreme Court’s majority opinion in NFIB v. Sebelius authored by Chief Justice Roberts, agreed. I still remember well sitting down and reading that opinion the day it came down. The first 80 percent of the opinion is strong, principled, and consistent with the Constitution. The jurisprudential holdings on the Commerce Clause and the Spending Clause are important and faithful to the limitations on federal power.
Then, at the end of the opinion, Chief Justice Roberts engages in a quick little sleight of hand. Although the individual mandate would have been unconstitutional if it were a “penalty” (which is what the statute called it), Roberts instead decided to transform it into a “tax.” A tax is an imposition of a duty by the federal government to pay money to the federal government. It is governed by a different clause of the Constitution, the Taxing Clause.
The Court’s jurisprudence had long held that there is wide discretion for the federal government to design taxes. But here’s the rub: The individual mandate was not a tax. Nowhere in the thousands of pages of that mammoth bill did Congress describe it as a tax. Not only that, but the Democratic members of Congress who advocated for Obamacare repeatedly argued on the floor, and in the press alike, that it was not a tax. Barack Obama himself repeatedly argued that it was not a tax.
And notably, the U.S. Department of Justice did not make their principal argument that the mandate was a tax; DOJ raised it only as a secondary, alternative argument. And there was a reason that the Obama administration devoted little time and energy to this argument: because it was simultaneously arguing that the mandate was not a tax. A separate statute, called the Anti-Injunction Act, prohibits the Court from considering legal challenges to taxes until after they are paid. DOJ wanted the Court to consider and reject the challenge, so they argued that the mandate was not a tax under the Anti-Injunction Act, while claiming at the same time that it was a tax under the Taxing Clause. On the first day of the three-day oral argument, Justice Alito called them out on that contradiction:
Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
The Obama solicitor general admitted that, “no,” the Court had never done that. But that didn’t stop Chief Justice Roberts. Writing for himself and the four liberal justices, he concluded that Obamacare was not a tax under the Anti-Injunction Act, and yet, remarkably—at the very same time—it was a tax under the Constitution.
This was not a minor distinction. Obama had campaigned in 2008 promising the American people he would not raise taxes on Americans earning less than $250,000 a year. If the individual mandate were a tax, Obama would have brazenly broken that promise. Indeed, the individual mandate, when it was in operation, typically resulted in the IRS’s fining over six million Americans each year because they could not afford to purchase health insurance. Of those the IRS fined, roughly 80 percent earned $50,000 a year or less and roughly 40 percent earned $25,000 a year or less. Single moms waiting tables and working sometimes two, three jobs—who couldn’t afford health insurance because they earned less than $25,000 a year—nonetheless found themselves subject to an IRS fine. It was one of the factors that later led former President Bill Clinton to
