Nearly twelve years later, I still haven't gotten over NFIB v. Sebelius (2012). No, it is not because of Chief Justice Roberts's "saving construction," which fused together the individual mandate and the penalty provision to save the law. Nor is it the rewriting of ACA to allow states to opt out of the Medicaid expansion. I've come to terms with both of those elements of the Court's decision.
No, the part I cannot get over is the Chief Justice's discussion of whether the ACA's penalty-tax is a "direct" or "indirect" tax. Roberts mustered four muddled paragraphs that explains how difficult and unclear this area is, and he ultimately shrugs his shoulders. Roberts closes:
The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
But if it is not a direct tax, what is it? Roberts does not tell us. He simply moves onto the saving construction. The joint dissent called out the Chief's failure to decide a critical issue:
Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-and-a-promise accorded by the Government and its supporters. The Government's opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A is an exercise of the tax power. And once respondents raised the issue, the Government devoted a mere 21 lines of its reply brief to the issue. Petitioners' Minimum Coverage Reply Brief 25. At oral argument, the most prolonged statement about the issue was just over 50 words. Tr. of Oral Arg. 79 (Mar. 27, 2012). One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression.
Roberts is a brilliant lawyer. But here, the emperor had no clothes.
Reading Moore v. United States gave me NFIB PTSD. Each of the three opinions cited Roberts's incomplete analysis of the taxing power. And I shuddered each time.
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