- The Washington Times - Thursday, June 28, 2012

Chief Justice John G. Roberts Jr. ignored President Obama’s words, and instead found a way to uphold his health care law in Thursday’s health ruling.

Despite the president’s repeated assertions during the debates in 2009 and 2010 that the IRS penalty imposed on those who don’t obtain insurance wasn’t a tax, Chief Justice Roberts said it was, in fact, a tax — and that the individual mandate is constitutional as an exercise of Congress’s broad taxing powers.

But at the same time the chief justice also delivered a blow to Mr. Obama and others who have claimed broad powers under the Commerce Clause, saying Congress could not have used that to compel Americans to buy insurance. In doing so, he set a real limit on Congress’s powers under that clause, and ended a century of expansion.

“The most important thing at stake in this case was whether Congress had the Commerce Clause power to make everybody go into business with a private company, and there was not a majority for that. We’ve turned away the most dangerous claim,” said Georgetown University Law Professor Randy Barnett, who has been fighting against Commerce Clause expansion for years and was a leading intellectual light for the health law’s opponents.

Thursday’s decision amounted to a 4-1-4 ruling, with four liberal-leaning justices saying the law should be upheld on the Commerce Clause and taxing powers and four other justices saying it exceeds government limits no matter which power is cited.

That left the chief justice in the middle.

His controlling opinion tried to strike a careful balance, affirming Congress’s powers but denying them the limitless tool of the Commerce Clause.

At root, he said the government cannot force individuals to engage in commerce: “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.”

But he said Congress’s decisions under the taxing power does apply — and said it doesn’t matter what politicians call it during the debate.

And he said the taxing power doesn’t have the same compulsion because it gives Americans a choice — perform an action or pay more money to the government.

“Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new,” he said.

“Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one,” he wrote.

In defaulting to the taxing power, the court rescued the Obama administration from itself — and in some cases the justices even reversed their own take on the law compared to March, when they held oral arguments.

“Here we have a case in which Congress determinedly said this is not a tax,” said Justice Elena Kagan, as she and the other justices prodded the government’s chief lawyer over the issue during the three days of arguments.

At another point Justice Ruth Bader Ginsburg also chimed in that she didn’t believe the government could rely on taxing power.

“A tax is to raise revenue, tax is a revenue-raising device,” she said. “This penalty is designed to affect conduct. The conduct is [buying] health protection, [buying] health insurance before you have a need for medical care. That’s what the penalty is designed to do, not to raise revenue.”

The health care law requires most Americans to obtain health coverage, and imposed an IRS penalty on those who fail to do so. During the debate, Mr. Obama said that wasn’t a tax: “For us to say you have to take responsibility to get health insurance is absolutely not a tax increase.”

By the time the lawsuits started to roll in, the administration had changed its argument, asking courts to uphold the law’s mandate as a valid exercise of taxing power.

Lower courts rejected that argument and at oral argument before the Supreme Court, even the chief justice seemed incredulous.

“You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?” he asked Solicitor General Donald B. Verrilli Jr.

On Thursday, however, the chief justice embraced that argument.

“The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” he wrote.

Paige Winfield Cunningham contributed to this article.