Epstein in NYTimes on ACA Decision (#UChiLawSCt)

A Confused Opinion
Richard A. Epstein
The New York Times
June 28, 2012

The stunner yesterday was that Chief Justice John G. Roberts Jr., joined by the Supreme Court’s four most liberal justices, wrote the majority opinion that upheld the individual mandate in President Obama’s signature Affordable Care Act, which requires Americans to obtain health insurance or pay a penalty. In an ironic twist, the chief justice simultaneously accepted the conservative argument that Congress’s power to regulate interstate commerce did not include the power to regulate economic inactivity, like a decision not to purchase health care. The court ruled 5 to 4 on that point, with the chief justice joined by the court’s four other conservative justices.

But what Chief Justice Roberts took from Congress with one hand, he gave it with the other: a broad reading of the taxing power. In the majority opinion, he wrote that since paying a penalty for not obtaining insurance could be seen as a tax, and since “the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” He will no doubt attract praise in some quarters for splitting this baby.

But his decision is wrong. As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice’s position in such an important case is confused at its core.

Faculty: 
Richard A. Epstein