Here’s a Letter to the Editor I sent to the Wall Street Journal today:
Today’s front page article, “GOP’s New Health-Law Front,” states that the Supreme Court’s Affordable Care Act ruling “circumvented the issue of whether the law was proper under Congress’s constitutional right to regulate commerce among the states.” That is incorrect. Chief Justice Roberts’ opinion emphasized that he construed the penalty for failure to carry insurance as a tax only because doing so was necessary to sustain the Act’s constitutionality. Had the Commerce Clause authorized the individual mandate, the Chief Justice would not have endorsed what he conceded was not “the most straightforward reading of the mandate.” The Chief Justice’s conclusion that the individual mandate exceeded Congress’s powers under the Commerce Clause–a conclusion also reached by dissenting Justices Scalia, Kennedy, Thomas, and Alito–was therefore necessary to the majority coalition’s conclusion that the penalty for failure to carry insurance was authorized by Congress’s power of taxation. That makes it part of the Court’s holding and thus binding constitutional precedent. While your editorial, “A Vast New Taxing Power,” correctly chides the Chief Justice for improperly expanding Congress’s taxation powers, you must give him credit for preventing a Commerce Clause ruling that would have eviscerated the notion of enumerated powers by granting Congress a general police power.
Professor of Law
University of Missouri Law School