Artur Davis: The Silver Lining is Dark

Having argued in my previous posting that the Supreme Court’s squeaker on healthcare vindicates the left’s strategy of winning by marginalizing opposition, I am not in the camp that sees a silver constitutional or legal lining (the politics is a different story as I suggested earlier). A significant number of conservative scholars, and a few of their liberal counterparts, have a different view.

Even assuming that at least some of the conservative sentiment is the desire to find comfort in defeat, and that some liberals are engaging in the intellectual version of being graceful winners, there is some core of truth here: upholding the mandate on commerce clause grounds would have linked the power to regulate a market with the power to compel participation in it.  Justice Ginsburg’s concession that the power’s only limitation is practicality and political modesty is much less dangerous in a concurrence than a majority opinion.

But the fact that five votes coalesced around a weakening of the commerce clause is cold comfort when the fifth vote hinged on blowing the lid off of the tax and spend power.  That taxing power, which looked until the day of the ruling like a straightforward ability to add an official levy to commercial activity, now looks ominously broader. As of now, it as limitless as the government’s imagination, as long as it not so high that it turns into a de facto penalty or a fine. Or, in Chief Justice Roberts phrasing, as long as it is “just a tax hike”, all is fair.

Liberals express credulity at the activity/inactivity distinction that permeated so much of the oral argument, dismissing it as extra-constitutional policy talk that has no textual foundation. But Given Robert’s apparent acceptance of the distinction in the commerce clause context, though, it is odd that it would not trouble him when it comes to the taxing power. The majority opinion offers no other example of a tax that operates only against taxpayers who refrain from purchasing a product–inactive free riders that they are–and it’s for the good reason that there really are none.

Could a future pro-drilling president propose to tax oil companies who decline to drill in permitted territory? Could a pro-manufacturing Congress impose an extra tax on companies who decline to base their supply lines solely on domestic soil? What about the prospect of a special tax on buildings that don’t invest in the most updated green or solar technology? These are questions that are considerably less idle than the “could we make them eat broccoli argument” that transfixed the Court and consumed considerable space in the opinions on healthcare.  Precisely because, as Roberts, acknowledges, the taxing authority is such a favored tool to shape conduct and reward private and corporate behavior, it’s no stretch to imagine a host of new taxing schemes, mostly on the left, but not exclusively (one could envision a Republican Congress substituting for the child tax credit a regime that only taxed families without children).

If John Robert’s maneuver invites the next Democratic Congress to turn taxes into the newest regulatory tool, the silver lining will look dim indeed.  In fact, had Roberts justified the mandate under the commerce clause, but tossed in the limiting principle that healthcare is a unique national market and that Congress’ powers should be stretched to meet that reality, he would have left Washington weaker than it is as of June 28, 2012.

It’s possible, of course, that a tax on the voluntarily uninsured is a weak kneed enforcer and that the vast majority of Americans subject to it will choose it as a lighter financial burden than insurance they have concluded they can’t or don’t want to afford. It may also be that Robert’s penalty/tax distinction rules out any tax bite that would be coercive enough to do real damage. There is even a plausible argument that the Obama Administration’s contortions to avoid admitting “middle income” tax hikes is confirmation that the anti-tax aversion constrains even Democrats who wouldn’t think twice about enacting additional regulations.

But conservatives who recoil at federal power can’t seriously view that subjective playing field as a more restrained end-point than a robust commerce clause might have been.  Political moods will shift, taxes on targeted industries will always be in vogue on the left, and one family’s minor tax hit is another family’s heavy burden. The truth is that policy liberals have a new shiny tool in the aftermath of the Roberts decision, and it is wishful thinking to hope they won’t abuse it.

(Cross-posted, with permission of the author, from


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