Friday, October 15, 2010
One of the several eye-catching features of this week's decision on health care reform out of the Northern District of Florida is this: The court's homage to publicity as a core value in our representative democracy. The remarkable statement comes in the section of the opinion dealing with Congress's taxing power--whether Congress can enact the individual mandate under its taxing power, when there's no clear indication from Congress that it intended to enact the mandate under its taxing authority and when Congress seemed to treat the mandate as anything but a tax in the public discourse. Thus:
In other words, to the extent that the [government is] correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.
. . . In other words, the members of Congress would have reaped a political advantage by calling and treating it as a penalty while the Act was being debated . . . and then reaped a legal advantage by calling it a tax in court once it passed into law.
Op. at 27-28 (emphasis in original). And then this kicker:
This should not be allowed, and I am not aware of any reported case where it ever has been.
Op. at 28 (my emphasis). Further explained here:
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an "Alice-in-Wonderland" tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.
This isn't much of the court's 65-page opinion, to be sure. But consider this: The court addressed the issue of Congress's taxing power (including these passages) first, even before it addressed justiciability--the threshold questions of standing and ripeness. It seems that the court had something to say about the political branches' duplicity in enacting and defending the mandate.
By one reading, the court is reinforcing democracy, in the spirit of Ely. More particularly, it's imposing its value of publicity (and related values of transparency and accountability)--deliberative democracy values--upon the political branches. By demanding that members of Congress maintain consistency in their positions, the court helps educate citizens as to their representatives' true purposes and helps voters hold their representatives' feet to the fire.
But by another reading, the court is dramatically overreaching. It is imposing consistency and truth demands on Congress, requiring members to articulate their political claims in the same terms that the institution articulates its constitutional claims in court. While, as the court says, there's no precedent for upholding a tax law that was justified on the basis of a penalty, there seems to be no precedent the other way, either. The court seems to support its claim based only on normative principles: "This should not be allowed." This seems like a remarkable lack of deference to a co-equal branch interpreting its own constitutional authority.
And moreover the court's authority for its methodology seems quite thin: Helwig v. United States (1903). The court uses Helwig to delve into "the nature of the act" in order to determine what authority Congress relied upon in enacting the mandate. According to the court, the nature of the mandate includes legislative language, clear congressional intent (as to the authority it is employing), public defenses of the mandate under the Commerce Clause, the method of collection, and Congress's "fail[ure] to identify in the legislation any revenue that would be raised from it . . . ." According to the court, these all point away from the taxing power as authority for the mandate.
But Helwig didn't deal with "the nature of the act" in order to determine congressional authority in the abstract. Rather, Helwig, a 1903 case, looked to "the nature of the act" to determine specifically whether Congress intended the act to be a penalty (not authorized) or a tax (authorized). This penalty-tax dichotomy went away 73 years ago--24 years after Helwig. The court too easily glosses over the fact that the "Helwig methodology" that it borrows is in fact bound up (perhaps inextricably so) with the debunked penalty-tax dichotomy.
Whether the court was reinforcing democracy or overextending its judicial authority, it was clearly making a statement.