NYU Law professors react to Supreme Court health care ruling

NYU Law faculty made the following statements following the Supreme Court ruling upholding the bulk of the Affordable Care Act.

Legal analysis, not politics, controlled the decision

Richard H. Pildes, Sudler Family Professor of Constitutional Law:

“This decision is a tribute to the Supreme Court as an institution and to John Roberts, who is elevating himself into the role of one of the most significant Chief Justices in the last 40 years. By concluding that the mandate could not be sustained under the Commerce Clause, but could be sustained as a tax, the Court and Chief Justice Roberts revealed that legal analysis, not politics, controlled the decision; and that seven Justices agreed on the Medicaid provisions further confirms that the Court found common ground in fidelity to law.”

Solomonic decision protects institutional integrity of the Supreme Court but makes no sense

Barry Friedman, Jacob D. Fuchsberg Professor of Law:

“The decision was entirely Solomonic; it gave everyone what they wanted (except to strike down the law). The right's claim was that the mandate went too far in regulating inactivity; the Chief Justice agreed, as did a majority of the Court. The left's main concern was that the law be upheld. It was, on the ground it was a tax not a regulatory mandate.

“But the decision, while protecting the institutional integrity of the Court, made no sense and was unnecessary as such. The Chief Justice fails to explain adequately why it matters or makes sense that Congress cannot regulate inactivity but can tax it. The two in practical effect are indistinguishable. Indeed, by approving taxing power of this magnitude, the Chief Justice may ultimately have expanded not limited federal power.

“It was also entirely unnecessary to reach the commerce clause mandate issue if it was going to uphold it as a tax. The Chief Justice's argument here also is unconvincing.  But in doing so it allowed him to appear at least to split the difference.”

Justice Ginsburg cited Professor Friedman's amicus brief in her opinion on the case.

The Court has affirmed an essentially limitless taxing power

Roderick M. Hills Jr., William T. Comfort, III Professor of Law:

“This decision has confirmed my worst fears about the anti-mandate: using individual rights rhetoric to constrain the commerce power has led the Court to unleash a much more dangerous power that had lain dormant for more than a half-century (since Kahriger). Having bought the limit on the commerce clause, the Court has stripped this limit of any functional meaningfulness by re-affirming an essentially unlimited taxing power.

“I can’t see anything in Roberts’ 5-vote majority option that would not allow the Congress to impose a tax on same-sex marriage.”

Read Professor Hills’ blog post, "The Healthcare Decision and the Revival of the Taxing Power: The Costs and Benefits of Formalism in Federalism," at PrawfsBlawg.

Taxation power and commerce power are “made of the same stuff”

Richard A. Epstein, Laurence A. Tisch Professor of Law:

“Rick Hills is right to smell a rat in Chief Justice Roberts’s decision in National Federation of Independent Business v. Sebelius to sustain the individual mandate under the taxing power of the United States.  The question that was constantly asked about the government’ expansive reading of the Commerce Clause was whether it was possible to identify some “limiting principle” if various forms of nonactivity could be taxed.  The same question can be asked about the power of taxation. Hills is surely correct that a legislative measure cannot be sustained solely because it raises revenue, for by that definition, every tax will pass muster, so long as it can raise a single dime.

“One therefore has to look elsewhere for some account of the limitations. In this regard, Chief Justice Roberts placed extensive reliance on the Bailey v. Drexel Furniture Co, which struck down a tax on those goods that were to be shipped into interstate commerce by factories that used child labor. Part of that decision rested on the view that the heavy nature of the exaction, equal to ten percent of the net profits of the entire business, wholly unrelated to the level of child labor used, could be regarded as a penalty and not a tax.

“What Chief Justice Roberts did not discuss, however, was the connection between the power of taxation and the power to regulate interstate commerce. Chief Justice Taft in his decision noted that so long Hammer v. Dagenhart was correct in insisting that Congress could not use its commerce power to block the shipment into interstate commerce of goods made in factories that somewhere employed child labor, it could not achieve that same end by resorting to the taxation power. The two powers were regarded as being “in pari material,” that is made of the same stuff, so that there could be no circumvention of the limitations of the Commerce Clause by resort to the taxing power. That of course is exactly what happened in NFIB v. Sebelius.”