Op-Eds

This morning the Supreme Court upheld the Affordable Care Act (ACA).  But I believe it will ultimately prove to be a hollow and short-lived victory for the health care law.  

I believe it will prove hollow because the Supreme Court was able to find the individual mandate constitutional only through a series of extraordinary logical gymnastics that led the Court to conclude that the mandate is actually a tax.  But, of course, members of Congress did not vote to pass the ACA as a tax.  Nor did the American people understand it to be a tax.  Indeed, President Obama himself flatly stated that the individual mandate “is absolutely not a tax increase”—that “nobody” considers it a tax.

As Justice Kennedy noted in his dissent, “[i]mposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.”  There is simply no way that the ACA would have become law had the American public and their representatives understood it as a tax.

As a result, I believe the practical effect of today’s Supreme Court decision upholding the mandate will be short-lived.  As numerous public opinion polls confirm, the majority of citizens already oppose the individual mandate.  As more Americans come to understand the individual mandate as a middle-class tax hike, it will only become more unpopular.  According to the non-partisan Congressional Budget Office, at least 75 percent of the penalties or “taxes” imposed by the individual mandate will fall on hard-working Americans who make less than $250,000.  In making choices at the ballot box this November, I believe the American people simply will not stand for the ACA to remain the law of the land.

When we look back at today’s decision in the coming months and years, it may ultimately be regarded less as a victory for the Affordable Care Act and instead as an important recognition and validation of the freedoms protected by our constitutional structure.  The Court’s decision today upheld the individual mandate as a tax, but it also validated fundamental principles of limited government and federalism.   

A majority of the justices rightfully concluded that Congress had exceeded its regulatory authority under the Commerce Clause by attempting to impose the individual mandate as a government directive.  As Chief Justice Roberts’ opinion explained, “The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . That is not the country the Framers of our Constitution envisioned.” 

In so holding, the majority opinion expressly embraced the limiting implications of the distinction between activity and inactivity, put forward by critics of the Act.  The Court noted that although its Commerce Clause jurisprudence throughout much of the last century had been notoriously expansive, even at its most expansive in cases like Wickard v. Filburn, it had always limited Congress to regulating preexisting activity.  The ACA, by contrast, impermissibly attempted to reach inactivity.  The Court refused to countenance such limitless congressional regulatory power. 

Today’s ruling also includes an important precedent upholding the right of the States not to be coerced into administering federal regulatory programs.  The Court held that the manner in which the ACA sought to expand Medicaid violates the Constitution and our nation’s system of federalism.  The federal government may not bully the States into expanding Medicaid coverage by threatening to take away all preexisting Medicaid funding.  As the federal government increasingly attempts to circumvent the Constitution by coercing States through funding threats, this aspect of the Court’s opinion may prove to have enormous significance.

For now, the Supreme Court’s decision to uphold the ACA’s individual mandate as a tax puts the call to action squarely back on the people’s elected leaders in Congress.  As the majority opinion reminded, the Court “possesses neither the expertise nor the prerogative to make policy judgments.  Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them.”

Without a single Republican vote, Congress enacted an intrusive and burdensome mandate on the American people—a mandate that is hugely unpopular and has the potential to do our country great harm.  The individual mandate violates basic American freedoms and personal liberty in a way no Congress had before attempted in the 225 year-history of our Republic.

With a new administration and new leadership in Congress, we can repeal the ACA and restore individual liberty to all Americans.