Even More About NFIB v. Sebelius

My last post explained my belief that Section III-B of Chief Justice Roberts’ opinion in NFIB v. Sebelius relies on equating a law having the arithmetic effect of raising taxes (while simultaneously offering a tax credit) with an exercise of Congress’s power to lay and collect taxes.  I ended that post with a question that I have rephrased slightly here:  what are the essential characteristics of a legal culture in which a person might believe (or plausibly expect others to be persuaded) that legislation having the effect of a tax hike is, solely by virtue of that effect, an exercise of the power to tax.

1.  In my view, this question has particular significance because the Section III-B equation looks flatly wrong from the vantage point of political science.  I do not know of any student of contemporary American politics who thinks the individual mandate would have been adopted had it been described to the public as a tax-hike-cum-offsetting-incentive-tax-credit.  If the Section III-B equation is false as a proposition of political science, how might it be true as a proposition of Constitutional law?  Note that the answer cannot lie in some difference in competency as between political science and law as disciplines.  A given piece of legislation might be politically neutral, but the process of law-making is nothing if not political.  Thus, Congress’s exercise of an enumerated power falls within the subject matter of political science as well as Constitutional law, and the question remains why do the two disciplines reach opposite conclusions in this case.

2.  One obvious answer is that the lead opinion in NFIB was designed not only to evidence the Court’s political neutrality, but to signal it in exaggerated (and therefore unmistakable) terms.  Part III of the NFIB opinion looks like an effort to prove that the Court never would even attempt to resolve a policy disputes, not because it has the will power to resist any such temptation but because it is not troubled by temptations of that sort in the first place.  Moreover, Part III goes further than necessary to project an image of detached asceticism when it comes to issues of policy.  It suggests that the Court is indifferent not only to the outcome of a policy dispute, but even to the process by which policy issues are resolved.

I say this in part because the Part III-B equation ultimately relies on abstracting completely not only from questions of policy but even from the political realities attendant upon the enactment of Affordable Care Act.  The approach taken in Part III-B to determine whether Code Section 5000a might be an exercise of the power to lay and collect taxes is purely formalistic.  Pure formalism is the Court’s traditional escape route when it fears that deciding a case otherwise might involve an inquiry into the details of the legislative process, i.e., an inquiry into what is necessarily a partisan process.  For example, by adopting the so-called “enrolled bill rule” in Field v. Clark (1892), the Court avoided the need for a hearing to decide whether a party or parties unknown had slipped some additional language into a bill after it had been voted on by one house of Congress.  The enrolled bill rule does not exactly amend Article I, Section 7 out of the Constitution.  It is merely an irrebuttable presumption cast as a rule limiting the evidence admissible to prove compliance with Article I, Section 7 to the attestation of an officer of the House, the Senate, and the executive branch.

Like the enrolled bill rule, the equation on which Part III-B relies is the result of accepting a priori a purely formalistic approach to answering the question, “What is a valid statute?”  Under the lead opinion in NFIB, that which on its face might have been the result of an exercise of the power to lay and collect taxes, had that power been exercised in fact, is the result of an exercise of the power to lay and collect taxes as a matter of law (provided that the bill met the formal requirement of having orignated in the House).

3.  Obviously, the adoption of the Affordable Care Act met all of the Constitution’s procedural requirements for becoming a law, so the observation that Part III-B of the lead opinion is hihgly formalistic is not meant as a criticism.  Indeed, as a general rule, the law ultimately depends on attributing real world significance to pure formalities, including formalities that might look very much like mere rituals.  One example is the concept of “title,” on which all of property law depends.  Another is naturalization, which is quite literally the result of a ceremony in which specific words must be recited in a specific order to accomplish the objective at hand.  Moreover, there are practical reasons for resolving some disputes based solely on whether a given process was or was not followed.  It is much easier to make a finding that an oath was sworn than it is to find based on other circumstances that a witness was conscious of a duty to speak the truth.

Moreover, some disputes might never end but for reaching a conclusion based solely on the occurrence or non-occurrence of a formality, or, if proceedings were brought to a close, the result nonetheless might be subject to perpetual doubt.  In other cases, the overall price to be paid by society for allowing courts to look behind a formality to get at “the real truth” might be too high.  Indeed, Field v. Clark may be one of those cases.  Patriotism and other civic virtues might have suffered from too close an inspection of the workings of Congress.  A reasonable person might have decided that it was a net plus to avoid the risk that people would come to despise their government, even if avoiding that risk meant that the federal courts sometimes might enforce the work of a corrupt scholiast as if it were the work of Congress.

4.  However, I do not think the resort to pure formalism provides a complete explanation for Part III-B of the NFIB opinion.   Instead, I think Part III-B “works,” to whatever extent it does, only because it tacitly repudiates Principality of Monaco v. Mississippi (1934), where the Court held that a law may be invalid because it violates an “essential postulate[s]” of the Constitution, i.e., a constitutional norm that is not explicitly stated in the Constitution’s text.  I say this because I think Part III-B’s equation of a tax rate hike with an exercise of the power to lay and collect taxes fails to consider a fairly obvious counter-argument, one that I regard as at least plausible, that is based on conclusion drawn from certain structural features of the government established by the Constitution but that is not embodied in any single clause.

5.  Nothing in the text of the Constitution explicitly makes the validity of an Act of Congress depend on Congress’s specifying which of its legislative powers it believes it is exercising, much less on the Court’s agreement with Congress’s specification.  Thus, federal legislation differs from a game of eight ball in at least this one respect.

However, the Constitution includes a unique rule for the exercise of one of Congress’s powers.  Any bill for raising revenues must originate in the House of Representatives.  Viewed in isolation, this rule seems to be purely procedural.  Moreover, today we are inclined to view satisfaction of this requirement as not only a mere formality, but a meaningless one.  Article I, Sec. 7, cl. 1 goes on to say that the Senate may propose or concur in amendments to such a bill as it can in the case of any other legislation.  As a result, any House bill related to revenue can wind up as a mere vessel into which the Senate pours completely unrelated tax provisions.  Indeed, the PPACA began life as a House revenue measure on a topic entirely unrelated to health insurance coverage.  Before adopting it, the Senate “amended” that bill by removing every single word from it and substituting language said to have been worked out by Senate Majority Leader Reid and several other individuals.

As noted above, then, the adoption of the ACA satisfied the letter of Article I, Sec. 7, cl. 1   However, Article I, Sec. 7, cl. 1  could be regarded both as a procedural rule and as one manifestation of a more general principle of accountability to the voters and evidence that this principles was considered particularly important when it came to taxation.  The Founders evidently considered bills to raise revenue as sufficiently different from any other Act of Congress (including a declaration of war) that a procedural rule of some sort was deemed not only appropriate, but uniquely appropriate, when Congress embarked on laying and collecting taxes.  But for this very reason, it is difficult to be satisfied with interpreting Article I, Sec. 7, cl. 1 as embodying nothing more than an empty ritual.

Indeed, the more one considers treating Article I, Sec. 7, cl. 1 purely as a procedural requirement, devoid of any other significance, the less plausible that interpretation seems.  The Constitution is largely free of ceremonial requirements, including ones that might have seemed natural to include based on models set by British institutions.  The federal courts have admiralty jurisdiction, but the Constitution does not require that laying an oar across the bench is a prerequisite to its exercise.  Black Rod is not required to ask permission three times before the Senate troops into the House chamber to listen to a presidential message on the state of the union.  Why, then, would the Founders have attached decisive significance to the requirement that a bill to raise revenue originate in the House instead of in the Senate, if that requirement could be satisfied by what amounts to a gesture?  For that matter, why would the Founders have created a requirement about where the bill originated instead of, for example, requiring that the sponsor of the bill dress up like George III during debate on the measure?

The answer to these questions cannot be derived from the text of Article I, Sec. 7, cl. 1, read in isolation from other constitutional provisions.  However, several of those other provisions are easy enough to find.  Every member of the House faces reelection every two years.  Moreover, the electorate in each Congressional district is composed of the broadest cross-section of its residents entitled to vote under state law.  These two factors made it easier to replace a Representative (as opposed to a Senator) promptly in response to having proposed a tax, and made it possible to replace up to the entire membership of the House promptly after any such measure were adopted (and on a single election day).  Individual yeas and nays are not required in either chamber except when overriding a Presidential veto, but a requirement that a bill to lay a tax originate in the House helps the electorate identify the culprits if the adoption of the proposal offends them. You can see where these observations are leading without further elaboration.  Article I, Sec. 7, cl. 1 is a special rule designed to promote the accountability of federal legislators to the people, i.e., it is a specific instance of a more general “postulate” of accountability.  Several Justices have deduced the existence of that postulate from the presence of various sets of constitutional provisions even though no one clause or subset of clauses in the set proves its status as a constitutional norm.

6.  If Article I, Sec. 7, cl. 1 is interpreted not only as a formal requirement but as evidences of a broader accountability-reinforcing norm of constitutional dimension, then the equation on which Part II-B of the Chief Justice’s opinion in NFIB breaks down insofar as it is a rule of law rather than a finding of fact.  This is so because under the most limited version of an accountability norm, i.e., a version that applies only to the power to lay and collect taxes, a measure that has the arithmetic effect of raising income tax rates cannot be treated as an exercise of the power to lay and collect taxes, even if it met the formal requirements of origination in the House, without at least some evidence that Congress provided the electorate with information from which voters could determine whether Congress had voted to raise taxes.

7.  This observation helps answer the question with which I started.  An intellectual environment in which one plausibly might believe (or plausibly might think that others might be convinced) that as a matter of law, any measure that has the arithmetic effect of raising income tax rates is the result of an exercise of the power to lay and collect taxes is the legal culture typified by clause-bound interpretivism.


The Bureaucracy’s Creep Against Life

This past Friday, the U.S. Department of Health and Human Services (HHS) postponed for a year (until August 2013) the effective date for an interim final rule (IFR) that would require many religious employers to cover under their health insurance plans preventive pregnancy services, from contraceptives to sterilization and “morning-after” pills.