Law Review: Language is loser in 'Obamacare' ruling

Posted: July 20, 2012

In his stocking feet, lawyer Paul Clement couldn't be more than 5' 10”. But in the world of conservative jurisprudence, he plays the role of a seven foot center.

Clement argued the case for 26 state attorneys general and the National Federation of Independent Business in their lawsuit to overturn the Affordable Care Act, a case he arguably lost. One of a handful of top Supreme Court specialists in Washington, he is the go-to lawyer for big companies with major commercial disputes as well as social conservatives seeking to build legal bulwarks around traditional American culture, as they see it.

His fluent, on demand rendering of the factual and legal complexities of cases before the Supreme Court was on full display Monday evening at the Union League, the fancy Center City club for Philadelphia's business elite.

There, at a presentation sponsored by the conservative legal group, the Federalist Society, Clement effortlessly unspooled the tangled facts and legal principles of a half dozen or more cases argued before the Supreme Court this past term. One of the organizers of the session said Clement came prepared with notes; I didn't see him look down once during his hour long, rapid-fire delivery.

So it was his easy grasp of the subject that made his baseline declaration about Chief Justice John Roberts' majority opinion in President Obama's health care law all the more jarring.

"The individual mandate was struck down," he declared to the audience of 200 or so lawyers.

If so, that would certainly come as a surprise to the White House and to Democratic leaders on Capitol Hill, who have hailed the wisdom of Roberts decision to essentially uphold the law that they enacted.

Yet Clement's assertion wasn't quite as out there as it seemed.

It is inarguably the case that Roberts upheld the primary coercive tool of the Patient Protection and Affordable Care Act, the requirement that Americans purchase health insurance, or suffer a consequence. Roberts said it was OK if the consequence was a tax.

The Constitution permits Congress to do that, he wrote. What it can't do is what Congress wrote into the law: compel citizens to purchase a product under the Commerce Clause. The Commerce Clause of the Constitution is broadly understood to regulate economic activity, Roberts wrote, but cannot be used to force someone to engage in economic activity.

In the high altitude precincts of constitutional legal theory, some conservatives were all atwitter with the idea that Roberts for the first time in the modern era placed significant limits on the use of the Commerce Clause as a vehicle for enhancing federal power. But as Richard A. Epstein, a legal scholar at Stanford University's Hoover Institution has argued since the ruling, what Roberts gave with one hand he took away with the other.

By declaring that Congress has the right to impose taxes on citizens who fail to engage in a mandated activity, Roberts may have signed off on a breathtaking expansion of federal government power. Clement's spin at the Union League, and it was spin, reflects this ongoing debate among conservative legal scholars and commentators on whether they won or lost. (On the left, by the way, there is little doubt about which way this thing went down. Most on the left agree they won.)

The purpose here isn't to weigh in on the merits of the president's health care policy. One of the few incontrovertible assertions in Roberts' majority opinion was that it is often better for Congress to resolve policy disputes than the courts, our least democratic of institutions. And there will be plenty of opportunities to do that in the election this year.

But the risk of Roberts' decision is that it drains meaning from language. It is the kind of legal reasoning, straining to reach a result not supported by underlying legal arguments and too clever by half, that gives ongoing life to the phrase, attributed to a Charles Dickens character, "the law is a ass."

Nowhere in the Affordable Care Act is the individual mandate described as a tax. It was defended by supporters in Congress as a penalty imposed under one of the enumerated powers afforded the federal government by the Constitution, the Commerce Clause.

In the 20 or so tax increases listed in the law, the individual mandate is not mentioned. The president, who surely knew it never would have passed Congress if it were packaged as a tax, continues to insist it is not a tax.

It is entirely possible that this entire discussion is one about semantics. Roberts may have concluded that the Commerce Clause doesn't allow the government to do certain things (causing at least two reporters to run from the courtroom the day he read his opinion from the bench to breathlessly tell their editors, wrongly as it turned out, that the court had struck down the law).

But he said that if you think of it as a tax, it's acceptable. This is by the way in the same opinion where Roberts earlier concluded that in fact the individual mandate is not a tax for the purposes of his anti-injunction act analysis. One of the lofty standards I try always to apply in deciding whether to write a story is to ask whether I can make it into a television show. It is clearly the case that the anti-injunction act is not television show material, so I won't bore you with the stupefying details.

But in brief, the act presented a threshold question. It bars suits by taxpayers against the government to overturn taxes before the government has begun to collect them. If the individual mandate was a tax, then the challenge to the Affordable Care Act had to go because the government hadn't begun to collect the penalty or tax or whatever.

There would have been no definitive decision. It would have been a punt.

Roberts, clearly looking for a way to uphold the law, at first concluded it was not a tax — before he decided that it was.

Much of the analysis in the days immediately following Roberts opinion focused on whether Roberts, with his surprising conclusion that the mandate was a tax and therefore constitutional, dwelled on speculation that the chief justice had delivered both a legal opinion and a political compromise. So concerned was Roberts about the image of the court as a nonpartisan, honest broker that he stretched the limits of legal reasoning to give something to everyone. If that was intention, it's not all clear he achieved that result. What seems indisputable though is that language came out a loser.

Contact staff writer Chris Mondics at 215 854 5957 or cmondics@phillynews.com.

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