The Supreme Court’s Healthcare Decision

Constitutional law is an odd subject. There is only so much “there” there. In the sciences, and even to a degree in social sciences such as economics, there is an accepted underlying framework, under which people’s claims can, at least in principle, be judged as either true or false. However, constitutional law doesn’t have an accepted underlying framework. So “right” and “wrong” answers are hard to define, even in principle. It thus comes as no surprise that constitutional scholars on both the left and the right tend to find that the U.S. Constitution, as properly interpreted, has this mysterious tendency, more often than not, to come out just the way they happen to like – on grounds that they claim are at least partly independent of their admitted policy preferences.

Despite this awkward fact, there is nonetheless a difference between good-faith and bad-faith constitutional analysis. To act in good faith, you need to respect it as a formal interpretive game that constrains your case-by-case policy preferences, at least to some degree. Your arguments must meet at least some minimum standard of plausibility and case-by-case intellectual consistency. Additionally, what can sustain this over time is at least implicit reciprocity. I agree to keep honoring the rules of the game and not just do what I like, in exchange for your agreeing to do the same.

This good faith willingness to engage in plausibly defensible, rather than transparently duplicitous, reasoning, has become endangered in recent Supreme Court jurisprudence. The classic example, of course, is Bush v. Gore. In that case, five Republican Justices who supposedly believed in judicial restraint, states’ rights and a narrow reading of the equal protection doctrine, cooked up a ludicrous one-time-only expansion of equal protection, at the expense of Florida’s right to resolve its own state election, in order to hand the White House to George W. Bush. No one could seriously maintain that they believed their own legal reasoning. Indeed, they stated in the opinion that it would not be treated as precedent.

In the recent litigation, a decision to find the healthcare mandate unconstitutional would have been similarly dishonest – whatever you think of the legislation substantively. Indeed, a number of conservative legal scholars – for example, Judges Richard Posner and Laurence Silberman, along with Professor Charles Fried – have noted how weak the constitutional objections to it are. Healthcare mandates were originally a conservative initiative, invented by the Heritage Foundation and largely supported by Republicans –not just Governor Romney – until the very moment when President Obama decided to use them. President Bush’s Social Security privatization plan would have used a mandate, requiring people to purchase retirement accounts from private companies, and no one ever dreamed of calling that unconstitutional. A mandate is less intrusive and invasive than the concededly constitutional Medicare system, which takes money from people and uses it to give them health insurance benefits.

What about “action versus inaction,” and forcing people to eat broccoli? A better analogy would be to forcing people to buy broccoli, which would surely be constitutional if (counterfactually) not buying it imposed costs on other people – as not buying health insurance clearly does, given that people who are very sick will be treated in the ER, whether they can pay for it or not. The whole “inaction” line of argument was transparent nonsense given that health insurance is not a consumer good in itself – it is merely a way of prepaying for healthcare that one is highly likely to receive in the future.

Given all these points, not to mention the health insurance mandate’s Republican pedigree, the constitutional objections to the mandate were never actually ideological (except among people who also believe that Social Security and Medicare are unconstitutional). Rather, they were purely partisan and aimed at giving Republicans a victory that the ordinary political process had denied them in 2010. .

Against this background, suppose we conclude that Chief Justice Roberts was being “political” in voting to uphold the health insurance mandate as a tax, and that this had less to do with his stated reasoning than with a reluctance to subject the “Roberts Court” to harsh public criticism. Even if that’s what he did, so much the better for him. It’s disappointing that he agreed with the other four Republicans’ ludicrous treatment of the Commerce Clause and of the “necessary and proper” issue, concerning whether the mandate was needed for the plan of regulating actual activity in interstate commerce to function properly. Yet in the end he laudably declined to join in a transparent act of dishonest partisanship that would have exposed the Supreme Court to well-deserved condemnation as merely a branch outlet of the Republican Party.

Daniel Shaviro is the Wayne Perry Professor of Taxation at NYU Law School. He has written a number of books on public policy, as well as a novel called Getting It, and has a blog at

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