The Obamacare Decision: The Chief Justice Has His Cake And Eats It Too.

So, after much nail biting, the Supreme Court, in a 5-4 decision penned by Chief Justice Roberts, largely upheld the Affordable Care Act, otherwise known as Obamacare.  Zillions of barrels of ink, both real and electronic, will be consumed in the coming days, weeks, months and years as pundits and professionals comment on the decision.

What initially caught my eye as an appellate advocate was the Chief Justice’s use–some might say misuse–of the doctrine of constitutional avoidance.  The constitutional avoidance doctrine is essentially a rule of statutory construction that tells judges faced with an ambiguous statute to adopt the interpretation that avoids requiring them to decide serious constitutional questions.  In other words, if the statute is arguably unconstitutional under one interpretation, but not the other, choose the latter.

The Chief Justice purported to invoke the doctrine by holding that the individual mandate was fairly susceptible of at least two reasonable interpretations: 1) it was an unconstitutional “mandate” that exceeded Congress’s Commerce Clause power; and 2) it was a constitutional “tax.” Because the individual mandate was constitutional if viewed as a tax, he voted to uphold the Act.

I say he “purported” to use the doctrine, however, because he really misused it.  The point of the doctrine of constitutional avoidance is just that — avoidance!  The point is to avoid deciding whether a statute is actually unconstitutional under one interpretation if there is a plausable alternative interpretation under which the statute is constitutional.  But the Chief Justice actually held–along with the four dissenting justices–that the individual mandate was, in fact, an unconstitutional exercise of the Commerce Clause power.  If he had truly honored the principle animating the doctrine, he would have said something like this: “Although there are very serious questions about whether Congress has the power under the Commerce Clause to impose the individual mandate, we need not decide those questions today because we hold that the statute can reasonably be construed as a tax, which is clearly within Congress’s power to enact.”

Justice Ginsburg gently chided the Chief on his misuse of the doctrine.  Perhaps, given that he voted to uphold the ACA, she was not about to challenge him too harshly. 

So, in the end, Chief Justice Roberts got to have his cake and eat it too.  He joined the four dissenters in placing a new constitutional limit on Congress’s power under the Commerce Clause, but he avoided going down in history as the leader of the Court that deprived millions of people of health insurance.