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No Mandate, Only a Tax

Chief Justice John Roberts’ surprising decision to uphold the Affordable Care Act [PDF] is a refreshing reminder that court decisions are usually about the law, not political ideology. Journalists and the general public, lacking legal expertise, tend to interpret decisions in terms of politically favored outcomes, and impute similar motives to judges. In reality, judges tend to split along ideological lines not because they make politically informed decisions, but rather political ideology tends to align with jurisprudential approach. Still, most decisions are sincere interpretations of law according to coherent principles. Roberts’ decision is an exceptionally incisive treatment of the issues at hand.

Most strikingly, Roberts upheld the constitutionality of the Act while rejecting the application of the Commerce Clause to the so-called “individual mandate.” He plainly affirms: “The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command.” The “mandate,” then, cannot be interpreted as a mandate. It is not illegal to refuse to buy health insurance, as there are no legal penalties save the requirement to pay slightly higher taxes. By rejecting a Commerce Clause argument, Roberts cuts off the possibility of future mischief by Congress attempting to regulate all activity and inactivity. Justice Scalia, in his dissent, gives a biting criticism of the opinion of Ginsburg et al., which would effectively abolish all limits on the scope of federal power. He pointedly notes the central fallacy of her instrumentalist philosophy, supposing that the Constitution enumerates problems to be solved, rather than powers of government.

Yet Roberts separates himself from the Court’s “conservative” wing – which in this instance includes the “moderate” Justice Kennedy – by allowing that the penalty imposed on the uninsured is effectively a tax, even though the law itself calls it a “penalty.” In Section III-B of his opinion, he cites precedent showing that the label applied to a fee or penalty does not control its constitutional status as a tax (though it does control the applicability of the Anti-Injunction Act, here ruled inapplicable). Further, he upholds the principle of judicial restraint by insisting that a law should not be overturned if there can be found a reasonable construction whereby it is constitutional. The construction that the mandate is a tax, though unintended by the legislature, is reasonable, and therefore the law may be upheld. This heuristic favors the functional effect of the law, rather than legislative intent or wording. Yet this interpretation does not oppose the intent of legislators, who would surely prefer that their law be held constitutional even if not on the same grounds. Roberts cites precedent showing that it is not necessary for Congress to specify the correct power it is using, as long as it is in fact using a constitutional power.

The interpretation that the “penalty” is a tax is reasonable, according to Roberts, for several reasons. There is no indication that a person may be prosecuted for failing to purchase insurance, so such omission is not a crime, in which case the additional tax is not a fine. The “penalty” is collected through ordinary income tax filing, and those who do not have to file do not pay anything. The penalty is small (only 2.5% of adjusted taxable income), in most cases much less than the cost of buying insurance, and can never exceed the cost of insurance. In fact, it is projected that 4 million will elect to pay this penalty rather than purchase insurance. Roberts also suggests that the absence of a scienter requirement proves that this is not a penalty for unlawful behavior, but Scalia rightfully skewers this notion. Nonetheless, the rest of the Chief Justice’s arguments hold.

Once it is admitted that the mandate is a tax, one need only show that it is a constitutionally allowable tax, and Chief Justice Roberts makes relatively easy work of this task. He cites numerous precedents of taxes designed to incentivize behavior, and notes that the specification of a determinate circumstance (having taxable income, yet lacking insurance) exempts this from being a capitation tax or “direct tax” in the sense of Article 1, Sec. 2. He further observes that omitting to do something does not exempt us from taxation. The proposed tax is not so high as to become unconstitutionally punitive.

The treatment of the “mandate” as a tax is by no means academic. As the Chief Justice notes:

Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions.

With a tax, by contrast, the government has no coercive authority beyond “requiring an individual to pay money into the Federal Treasury.” There is no further penalty, and the government cannot coerce anyone to buy health insurance, any more than they can force smokers to quit.

The ruling in National Federation of Independent Business v. Sebelius places important limits on future attempts at government mandates, not only because the government is denied broad coercive power over private action or inaction, but also because any future “mandate” will be clearly perceived as a tax, and thus difficult to pass. The so-called “mandate” amounts to a regressive tax, being a flat 2.5% rate, with mandatory minimums, on taxable income. This tax will disproportionately impact the young and the middle class.

Ironically, the “individual mandate” was ruled constitutional in part because it is so weak. The cost is so low, and easily avoided, that there is reason to doubt the basic premise of Obamacare, namely that a shifting of the cost burden to the young and uninsured will make health care more affordable in general. If increased mandatory coverage is not matched by sufficient increases in enrollment, premiums will only go up, discouraging even more people from enrolling, and creating a vicious spiral. Already, in the early phases, premiums have risen more rapidly than previously, with larger co-payments. This is because shifting costs through health insurance reform does little to address the fundamental cost structure problems at the provider level. Hospitals, doctors, and pharmaceutical companies strongly support Obamacare for good reason, and it is not because they expect their revenue to decrease.

Friends with Domestic Benefits

As the propaganda machine – a union of state and infotainment media – presses forward with its campaign to compel acceptance of the equality of homosexuality with marriage, it may be worthwhile to point out how modern confusion about the nature of marriage has made this campaign possible. In my previous remarks on this issue, I noted that there is no historical or anthropological basis for the recent invention of equating same-sex unions with marriage. This is why all anthropological texts and dictionaries, until very recently, recognized that marriage was essentially a union between a man and a woman. Yet the anthropological purpose of this union has been gradually obscured over the last century and a half.

In every culture ever known, there has been some form of marital union entailing that the progeny of a given woman pertain to the man who marries her. Marriage, in its essence, is intrinsically “sexist” or sex-based, and ordered to at least the potential, if not the actuality, of having children. Since the producing and rearing of children is of interest to society, marriage has always been socially regulated. It is not a purely private act between two individuals. The interests of families, clans, and even nations could be at stake, so these played a prominent role in marital arrangements. In fact, arranged marriage was the dominant norm throughout the world until the nineteenth century.

With liberal democratic emphasis on individual freedom, there came an undermining of patriarchal family authority, and spouses came to be chosen more or less autonomously. With the disintegration of extended family authority into what were later called “nuclear” families, there was little basis for choosing a spouse other than romantic affection. Thus arose the idea that romantic love is the primary motivation for marriage.

Once we accept the idea that marriage is primarily about two people who love each other, marriage begins to lose some of its special character. There is already a term for two people who love each other: friendship. While it may not be obvious in English that friends are lovers, this is explicit in Latin (amicus) and modern Romance languages (ami, amigo, amico).

Still, modern marriage retained a unique character as long as the love between spouses was a special kind, oriented to raising children in a family. Yet the rise of contraception, sterilization, and in vitro fertilization have enabled us to separate procreation from marriage. If this is no longer essential to what we call marriage, all we are left with is friendship by another name.

If it is said that modern marriage is still distinct from friendship by virtue of carnal intimacy, I would respond that such intimacy is no basis for making marriage more exalted than friendship, much less something requiring special state sanction. In fact, the Greeks and Romans regarded friendship as a greater love than that between spouses, since it was based more on admiration of character than love of physical beauty.  Plato and Aristotle thought it shameful debauchery for friends to indulge in such intimacy, since it cheapened a noble love.

Once we fully accept the error that marriage is just “love between two people,” there is no basis for making a distinction between heterosexual and homosexual unions. To any thoughtful liberal, it will seem cruel and arbitrary to deny equal status to both kinds. The sincerity of homosexual love will persuade him that there is a real parity with marriage.

Yet the liberal who reasons thus has lost sight of an important implication: if marriage is nothing more than love, then there is no reason for the state to be involved in sanctioning such a union. The state takes the role of some gossipy busybody, who keeps track of who’s in love with whom. For what reason?

We cannot claim the state regulates marriage in the interest of limiting sexually-transmitted disease, since we freely allow extra-marital liaisons, and impose no penalty for adultery. The ease of divorce makes marriage scarcely distinguishable from more casual romantic attachments.

Perhaps the state still regulates marriage in the interests of child rearing. Yet the liberal state goes to great lengths to facilitate single-parent families, and the propaganda machine is more concerned with validating its a priori conviction in “marriage equality” than with following hard sociological data suggesting that same-sex unions have poorer outcomes for adopted children. Thus the liberal state’s interest in marriage is emphatically oriented not toward the child, but toward the desires of the spouses.

In marriage as in other matters, liberalism succeeds only to the extent that it fails. That is, marriage remains a successful institution only insofar as the liberal conception of marriage has not fully overtaken society. Most couples do care about having children, and most feel duty-bound to remain married, notwithstanding the ease of legal divorce. Most people recognize that it is highly important for children to have both male and female authority figures. We even recognize that fathers and mothers have intrinsically different roles in the family.

If the liberal conception of marriage were to be taken seriously, we should acknowledge that it is arbitrary and senseless to give special sanction to this form of love, while denying similar benefits to good friends or long-term roommates. It is not at all surprising, but eminently logical, that the dynamic of social liberalism should lead to the complete deregulation of the family. The family, being the font of patriarchal authority, communitarianism, and social inequality, represents all that is abhorred by our libertine tendencies. Yet the family is far more formidable than the liberals have reckoned. Even if it is legislated out of existence, it will persist, and will continue to be a dominating social force. This is because its structure is inscribed in human nature, making it a more venerable and lasting institution than that god of clay, the state.

Benevolent Statism vs. Religious Freedom

Those who are generally unsympathetic toward organized religion may be tempted to dismiss or belittle the recent furor over the Obama administration’s mandate that all employers, including religiously-affiliated institutions, must provide coverage for sterilization, contraception and abortifacients. From a hostile secular liberal perspective, any opposition to this measure must be grounded in an irrational desire for public recognition of a religious belief. Adherence to this measure, by contrast, is simply rational compliance with a public health initiative. Such breezy analysis ignores the fact that the proposed mandate is a significant departure from established law regarding freedom of religious conscience, and it exhibits an intellectual confusion of liberal ethical norms with objective scientific reality. That is to say, the notion that contraception is necessary to health requires an expansion of the notion of “health” to include normative social judgments, rather than pure physiological examination.

The legal or constitutional issues are profound, and based on past case law and the current composition of the Supreme Court, it would be extremely surprising if the Obama Administration’s proposed measure will withstand litigation. The movement so strikes at the heart of freedom of conscience that several bishops are openly calling for refusal to comply with this unjust law. To appreciate the significance of this fact, consider that the bishops do not call for civil disobedience regarding existing law allowing divorce, abortion and contraception, or indeed for any other matter, though there are plenty of laws that express ideas hostile or contrary to Catholic teaching. However, none of these laws compel a conscientious Catholic to participate in a gravely immoral act. Further, the opposition is not limited to “conservative” bishops, but extends even to liberal-leaning Catholic figures such as Roger Cardinal Mahony and John Allen of the National Catholic Reporter.

Now, many liberals will dismiss this by saying that the Catholic Church is “wrong” or “backwards” for regarding contraception, abortion and sterilization as gravely immoral, and cite statistics showing most lay Catholics disagree with official Church teaching on contraception in particular. These criticisms show that certain liberals have no understanding of the principles of liberalism. There is no virtue in tolerating only those beliefs you find rational and agreeable. Even fascists tolerate other fascists, and communists tolerate other communists. If liberals only tolerate other liberals to have a voice in the public sphere, they are no more tolerant than anyone else. To adopt the “free exercise of religion” and freedom of religious conscience as a matter of principle means that we respect such freedom regardless of the content of a certain religion. Too often, secular liberals seem to regard religious freedom as something they grant only begrudgingly to keep the peace, not something they truly respect and honor. How could they respect and honor such a freedom, if they think all religion is a stupidity at best, or an oppressive evil at worst?

To make an analogy, one need not agree with the Amish that Christian modesty and simplicity requires refraining from using electricity. One could further point out that most Anabaptists (i.e., Mennonites) have no objection to using electricity and other modern conveniences. This does not abolish the right of the Amish to follow their religious conscience, and no one would think of compelling them to use electricity.

Many liberals tend to mistake their ethical judgments (homosexuality is essentially no different than marriage; contraception is “reproductive health”) for scientific facts. They are forced into such intellectual contortions because they are nominally unwilling to accept the legitimacy of imposing objective moral norms on the public (“you can’t legislate morality”). Thus the liberal, to be consistent, must pretend his ethical judgments are scientific facts. This can only be accomplished by the illogical process of inferring normative judgments from declarative statements.

This move by the Obama administration is based on the assumption that an ideological creed – “contraception is necessary to ‘reproductive health'” – is to be treated as an objective, universally accepted fact. It refuses to recognize the equal validity of alternate constructions, e.g., “contraception is an elective convenience for reasons of avoiding the economic and social consequences of pregnancy”. The notion of “reproductive health” is hardly coherent; if anything, pregnancy, not its prevention, is a sign of reproductive health. Even the manufacturers of contraceptives do not really believe that pregnancy prevention is a question of physical health. When Pfizer issued its recent recall of a non-functioning contraceptive, it explicitly assured customers that there was “no health risk”! Perhaps the women with unwanted pregnancies would have disagreed, but they are entitled to no compensation. If pregnancy were a health affliction, Pfizer would be facing tremendous liability right now.

At any rate, the Obama administration’s rule fails the “compelling state interest” standard for intervention in religious affairs, which previous cases and acts of Congress have established as applying to religiously affiliated institutions and persons, not just houses of worship. Given the widespread availability and inexpensiveness of contraceptives, there are plenty of alternative means of guaranteeing contraceptive access without requiring religious employers to pay for them, making this an especially gratuitous intrusion into the exercise of religious conscience.

As an added note, the mandatory imposition of insurance coverage without any copay is economically unsound, as proven by the past experience of military prescription drug coverage, which until recently had zero copay, resulting in exorbitant waste. The economic irrationality of this rule is only consistent with its ideological origin, which confuses convenience with entitlement. This 1970s-style statist liberalism is already imploding in Europe; it is ironic that our “progressive” president is trying to introduce this system as if it were something novel.