Professor Mark Hall: Legal Experts Were Completely Stunned By John Roberts’ Healthcare Opinion
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July 1, 2012
We all knew it would be close, but we never saw this coming: The Affordable Care Act survives, but only because Justice Roberts chose to characterize the individual mandate as a tax. The 5-4 outcome isn’t a surprise, but the particular reason is a big big surprise – one that virtually no one predicted (law professors included). How could we be so right, yet so wrong?
First, the unsurprising part: The Court’s five conservative justices agreed that mandating insurance exceeds Congress’ power to regulate commerce, because uninsured people are not engaged in commerce. The four liberal justices squarely disagreed. Furthermore, based on this flaw, four of the five conservatives (all but Roberts) would have declared the entire Act unconstitutional, with no apparent qualms.
Now, the unexpected.
Even though Congress invoked only its commerce power in writing the law, and President Obama went out of his way to avoid calling the individual mandate a tax, Justice Roberts, along with the Court’s four liberals, gave Congress the benefit of the doubt, ruling that the mandate can be viewed as a tax. Like a generous math teacher who gives full credit to a student who stumbles on the right answer by accident even though she completely botched the formula, the Court upheld the mandate on grounds entirely different from what Congress thought it was relying.
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