The Affordable Care Act decision could have been an expansion of the powers of the federal government under the Commerce Clause. Instead, Roberts sought to redefine the penalty as a tax, so to avoid defining it as a power under Congress power to regulate interstate commerce. Although I agree with Roberts reasoning so as not to uphold the law under the commerce clause, I also find the redefining of the individual mandate as a problematic precedent. However, I believe the greatest issues with the decision are actually the issue of Severability and the way in which the Medicare expansion was struck down. The implementation of the Affordable Care Act over the last few years have shown by making the Medicare expansion essentially optional it has
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Rather it makes going without insurance just another thing the government taxes, like buying gasoline or earning income” (National Federation, Roberts 32). This as Roberts argues, is akin to most taxes we pay and although it is an attempt to encourage a particular activity, this does not affect Congress’ enumerated power to lay and collect taxes. Scalia in his dissent argues that making this penalty into a tax is in fact a departure from past precedent, “we have never held --- never---- that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any action imposed for the violation of the law is an exercise of Congress’ taxing power ---- even when the statute calls it a tax, much less when the statute repeatedly calls it a penalty” (National Federation, Scalia 18). Scalia then goes on to gather evidence that the insurance was a requirement by law, not a Roberts’s interpretation, places it as a tax for those without insurance. Throughout the text of the Affordable Care Act, the penalty was clearly a punishment, for violating the mandate. In fact, the act refers to, what Roberts comes to find to be a tax as a penalty 18 times (National Federation, Scalia 21). Roberts acknowledges this, but points out that, “it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so” (National Federation, Scalia 31). In this particular case Roberts argues that it is in fact reasonable to define the mandate as a tax because it functions as one and that the dissenters cannot simply argue because it is called a penalty that it cannot be defined as a tax. However, Scalia argues that the penalty is so well defined as a penalty, that it
Rather it makes going without insurance just another thing the government taxes, like buying gasoline or earning income” (National Federation, Roberts 32). This as Roberts argues, is akin to most taxes we pay and although it is an attempt to encourage a particular activity, this does not affect Congress’ enumerated power to lay and collect taxes. Scalia in his dissent argues that making this penalty into a tax is in fact a departure from past precedent, “we have never held --- never---- that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any action imposed for the violation of the law is an exercise of Congress’ taxing power ---- even when the statute calls it a tax, much less when the statute repeatedly calls it a penalty” (National Federation, Scalia 18). Scalia then goes on to gather evidence that the insurance was a requirement by law, not a Roberts’s interpretation, places it as a tax for those without insurance. Throughout the text of the Affordable Care Act, the penalty was clearly a punishment, for violating the mandate. In fact, the act refers to, what Roberts comes to find to be a tax as a penalty 18 times (National Federation, Scalia 21). Roberts acknowledges this, but points out that, “it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so” (National Federation, Scalia 31). In this particular case Roberts argues that it is in fact reasonable to define the mandate as a tax because it functions as one and that the dissenters cannot simply argue because it is called a penalty that it cannot be defined as a tax. However, Scalia argues that the penalty is so well defined as a penalty, that it