New York, June 28, 2012—The U.S. Supreme Court’s decision Thursday to uphold the individual mandate provision of the Affordable Care Act is consistent with Congress’ broad taxing authority and marks a truly historic moment in the history of the Roberts court, according to constitutional law and tax law experts at Columbia Law School.
The Court, via a 5-4 decision, upheld the main provisions of the heath care reform law—including the contentious individual mandate requiring most Americans to purchase health insurance or face a tax penalty. Surprising many, Chief Justice G. Roberts Jr. voted with the Court’s liberal justices, while Justice Anthony Kennedy joined the conservatives in dissenting.
Leading tax law expert Michael J. Graetz, the Columbia Alumni Professor of Tax Law and the Wilbur H. Friedman Professor of Tax Law, said he was not surprised that Roberts, writing for the majority, argued that the individual mandate falls under Congress’ tax power rather than the Constitution’s Commerce Clause.
“The basic story, of course, is that there is a mandate, and the penalty for not complying with a mandate is the tax,” Graetz told the online news publication Capital. “So you think of it as you either pay the tax, or you buy health insurance.”
The taxing power certainly allows for this, Graetz told Capital. “[W]e pay taxes for Social Security,” he said. “Taxes are mandated. They’re not voluntary. And the Congress put this in the tax law, in the internal revenue code, so it’s not shocking this is what they did.”
Constitutional law scholar Gillian E. Metzger ’95, the Stanley H. Fuld Professor of Law and vice dean at Columbia Law School, said Roberts’ opinion upholding the individual mandate as a tax, while rejecting it under the Commerce Clause, will undoubtedly stand as one of the most important acts of his tenure on the Court.
“Roberts sustained major federal legislation decades in the making, while also underscoring that Congress’ regulatory power is not unlimited,” Metzger said. “This is a paradigmatic, statesmanlike decision, one that will help preserve the Court’s institutional stature.”
The tax power argument was central to a January 2012 amicus brief Metzger filed in the case together with Trevor W. Morrison ’98, the Isidor and Seville Sulzbacher Professor of Law. The two constitutional scholars served as co-counsel on the brief, arguing that the individual mandate is clearly covered by congressional tax power.
Professor Jamal Greene said adherents of congressional power might have preferred a different basis for upholding the law.
“But it makes a great deal of sense in light of the way in which the individual mandate ‘penalty’ is constructed and in light of the Court’s longstanding precedents giving Congress broad taxing authority,” Greene said. “If you’re a supporter of congressional power, the one gripe is that the chief justice—seemingly unnecessarily—says the mandate could not be imposed under the Commerce Clause or the Necessary and Proper Clause.”
Greene noted the political implications of Roberts’ decision not to side with his fellow conservatives on the Court. “Chief Justice Roberts can now say that he defied the entire Republican political establishment in a closely-divided case,” Greene said. “From now on, every cynic who says the Court is solely motivated by politics at least has to pause a bit.”