Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.
What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.
ADDED: The Commerce Clause discussion is in Section III-A of the Chief Justice's opinion:
The guaranteed-issue and community-rating reforms do not... address the issue of healthy individuals who choose not to purchase insurance to cover potential health care needs. In fact, the reforms sharply exacerbate that problem, by providing an incentive for individuals to delay purchasing health insurance until they become sick, relying on the promise of guaranteed and affordable coverage. The reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead insurers to significantly increase premiums on everyone. See Brief for America’s Health Insurance Plans et al. as Amici Curiae in No. 11–393 etc. 8–9.But in fact, as we shall see in the taxing power discussion, these healthy individuals won't have to buy insurance, because they can simply opt to pay the penalty, which they rationally will do because it costs less. And this money goes to the government — it's tax revenue — and not to the insurance companies, who now have those massive new costs.
The individual mandate was Congress’s solution to these problems. By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept....
The Government contends that the individual mandate is within Congress’s power because the failure to purchase insurance “has a substantial and deleterious effect on interstate commerce” by creating the cost-shifting problem. Brief for United States 34. The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549–559 (1995), but it is now well established that Congress has broad authority under the Clause...Roberts deals with the existing doctrine, which is, he says, "expansive." But this is different, because never before has Congress tried to use it it "to compel individuals not engaged in commerce to purchase an unwanted product."
The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated...And all the cases finding commerce power refer to some activity that is regulated. This is taking those who are inactive and forcing them to become active.
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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.It's beyond Wickard v. Filburn because "[t]he farmer in Wickard was at least actively engaged in the production of wheat." Roberts brings up the famous "broccoli" hypothetical: The government might try to force to "buy vegetables." (Later he specifies "broccoli," so broccoli lives on as the hypothetical vegetable in constitutional law.)
Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.That strikes me as odd, because it seems that the economists' idea is what is practical, while the action/inaction distinction seems more philosophical.
To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers....
Next, there's the idea — pushed by the government — that everyone is already somehow “active in the market for health care” even when the use of health care services lies in the future. Eventually, they are going to participate in this market, and what Congress did was regulate their payment for these services they are consuming now or in the future. Roberts sticks to what people are doing currently, as he makes his action/inaction distinction matter. And this is a practical, economic matter, because the point of the mandate is to drag these healthy people into the pool so insurance companies can get premiums from people who don't take out more than they put in. These people are targeted precisely because they are inactive:
It is precisely because these individuals, as an actuarial class, incur relatively low health care costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.... If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.Note that as Roberts explains why these people can't be regulated, he's also explaining why the health insurance companies are doomed. (But, you may think, isn't the mandate upheld under the taxing power? Again, what's upheld is the tax imposed for not buying insurance, and that's less expensive than buying insurance, and the money goes to the federal government, not to the insurance companies. Meanwhile — to make it crushingly clear — the insurance companies do have to sell insurance to people with pre-existing conditions. So these people who currently don't buy insurance because it's not worth it can start buying insurance as soon as it is worth it, and under the ACA, they can't be charged more than the people who have been buying insurance all along.)
MORE: To get the other 4 votes for the Commerce Clause position, we need to switch to the joint dissent, written by Justices Scalia, Kennedy, Thomas, and Alito. Scalia-Kennedy-Thomas-Alito track Roberts' activity/inactivity distinction, saying:
The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity....Remember that Scalia surprised us by concurring in Raich — based on the Necessary and Proper Clause.
The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005) .
That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15–22. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22....
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance....AND: Let's go back to the Chief Justice's opinion and to his discussion of the Necessary and Proper Clause. Once Congress decides to get into the immense project of dealing with health care and health insurance — an end that easily fits within the commerce power — why don't we accord it great latitude in determining which means to use to achieve that end? We've seen that Scalia-Kennedy-Thomas-Alito said there are other means, but the case law — notably McCulloch v. Maryland — says that Congress has its choice of means. In McCulloch, Chief Justice Marshall said that the Constitution "does not profess to enumerate the means by which the powers it confers may be executed," so "the ordinary means of execution" are implied. The chosen means doesn't have to be "absolutely necessary," and "narrow construction" would make the assigned work of government "impracticab[le]," which can't be what was intended. Marshall approves of means that are "appropriate" and "plainly adapted" to the enumerated ends, if they are — and here's the mystery phrase that Scalia-Kennedy-Thomas-Alito quoted — "consist[ent] with the letter and spirit of the constitution."
Chief Justice Roberts says that the Court has been "very deferential to Congress’s determination that a regulation is 'necessary'" — but it still looks for consistency with — that phrase again — "the letter and spirit of the constitution." And Roberts essentially repeats his Commerce Clause argument here: It would allow Congress to regulate inactivity.
Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.What about Raich, then? Why was it "necessary" and "proper" to reach home-grown, home-consumed marijuana used by medical patients? Roberts says that "marijuana is a fungible commodity" and so there was potential for diversion into interstate market that could "substantially undercut" Congress's big scheme of banning marijuana (which clearly is a matter of regulating commerce). But regulating the health insurance industry is clearly a matter of regulating commerce, and the people who don't by health insurance are substantially undercutting the success of that big scheme. Here's where I thought the Court would have the most trouble, and I'm not seeing much elaboration of why this is different from Raich.
ALSO: Here's Justice Ginsburg, in dissent, talking about the Necessary and Proper Clause:
Without the individual mandate, Congress learned, guaranteed-issue and community-rating requirements would trigger an adverse-selection death-spiral in the health-insurance market: Insurance premiums would skyrocket, the number of uninsured would increase, and insurance companies would exit the market.Yes, as we saw above, the Chief Justice clearly recognized this problem. It's an economic disaster without the individual mandate. Why doesn't that make it necessary? I can see 2 answers: 1. It is necessary. It's just not proper. And 2: Since the ACA lets the uninsured avoid purchasing insurance if they pay a tax/penalty to the federal government, and since that's what healthy people will rationally do, the scheme was never set up to work. If it doesn't even work, it doesn't make sense to call it necessary.
But Ginsburg says the individual mandate is what makes it work, so — using Raich quotes — it's an “essential par[t] of a larger regulation of economic activity” without which “the regulatory scheme [w]ould be undercut.” This makes sense if you think it's not the proper place of the courts to look at a legislative solution and make a judgment about how well it's going to work, and, I note, neither Roberts nor Scalia-Kennedy-Thomas-Alito relied on an independent judicial assessment of whether the individual mandate —with its big loophole (paying the tax) — would actually work to solve the problem it's supposed to resolve.
What Roberts and Scalia-Kennedy-Thomas-Alito did pay attention to was the "spirit of the constitution" and what is "proper." Ginsburg say that Roberts fails "to explain why the individual mandate threatens our constitutional order." He cites cases and claims this situation is different, but what is the doctrine?
How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction The Chief Justice, in effect, provides lower courts: You will know it when you see it.You will know it when you see it — i.e. "I know it when I see it." Did you know "I know it when I see it" has its own Wikipedia article? You haven't given us a rule to apply, and so judges — in an inappropriately nonjudicial way — will be deciding things ad hoc.
AND: I'm going to start a new post to discuss the spending power.
ADDED: I've corrected the text to reflect that Justices Scalia, Kennedy, Thomas, and Alito are writing the dissenting opinion jointly.