The United States Supreme Court holds an intrinsic institutional mandate to be both cold and calculating.
Landmark cases like Dred Scott v. Sandford and Plessy v. Ferguson — both contributors toward the maintenance of African-American servitude and segregation — seem to us now to be reflections of a court intent on bypassing political, economic and social ‘rightness’ in favor of strict adherence to constitutional legality.
In essence, the court traded the pressing question of what made moral and practical sense for the more tangible and answerable question of what was constitutionally justifiable. In both of the aforementioned cases, the law overrode our current notions of morality and social responsibility.
The 2010 Affordable Care Act, often termed “ObamaCare,” which was upheld by the Supreme Court in 2012, is a case of the converse.
In other words, whereas past Supreme Court cases have stuck to the precedent of upholding or ruling in favor of laws that may be politically, morally or economically ‘wrong,’ but constitutionally and legally ‘right,’ the Affordable Care Act presents a case where the law is politically, economically and socially ‘right,’ but constitutionally questionable.
Whether or not the act is truly constitutionally ‘right’ needs to be reexamined.
The 5-4 split in the court’s voting already indicates the presence of a gray area, so questioning the finding’s legitimacy is justifiable.
A central piece of the Affordable Care Act is its individual mandate, a provision that compels citizens to purchase health insurance. The general purpose of this mandate is to ensure that young, healthy Americans (who often defer the purchase of health insurance until later years) enter the insurance pool. More entrants into the pool means lower premiums, which makes it easier for those who cannot afford health insurance to purchase it.
To add brevity to a lengthy legal dispute: In its majority decision, the Supreme Court explicitly rejected the notion that the individual mandate was constitutionally justifiable under the right of Congress to regulate interstate commerce. Compelling people to commerce, they claimed, is not the same as regulating it. Rather, the mandate was upheld under the right of Congress to tax.
The case brief reads as follows: “CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.”
Later on in the opinion, this construction is deemed reasonable and justifiable, despite the Obama administration’s earlier insistence that the law was not a tax.
Here’s where things get tricky.
The individual mandate is, legally, a tax levied on those who do not purchase health insurance. It is a tax on the lack of action. It is a tax on inaction — the first of its kind.
The Supreme Court decided that this was constitutional — but is it?
My instinct is to say yes. I believe that, barring the Congressional sabotage that seems ever more probable in light of the ongoing budget crisis, the Affordable Care Act has the potential to improve the health care system in a sensible manner.
See what I did there? I let my instinctual perception of the law as being politically, economically and socially ‘right’ cloud my judgment of whether or not it ought to be considered constitutionally justifiable.
So, is it truly constitutionally justifiable?
I don’t know. I’ve been mulling over this question in my head for over a year now. I don’t think it is. I think it sets a dangerous precedent to justify taxation of inaction.
Questions like “If a law passed trying to tax me for my lack of red hair, would that be constitutionally justifiable?” sound juvenile. But in this case, they aren’t useless questions.
Let’s take a step back, ignore the noise from Congress about the law’s implementation for a moment and put ourselves in the seat of a Supreme Court justice.
Is a law like this — a tax on inaction — no matter how politically, economically or socially sensible it may appear, actually justifiable under the United States Constitution?