This post picks up where the last one left off and addresses Professor Bagley's invocation of a 2005 Supreme Court decision to support his view that NFIB must control the question presented in Texas v. United States. Here's the key passage from his Atlantic article:

Whether the mandate is still a tax for constitutional purposes makes no difference. The law’s meaning—that it gives people a choice—stays the same, even if the constitutional terrain shifts. Otherwise, the Supreme Court has written, “every statute” would be rendered “a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case.”

If you click the link that Professor Bagley provides there, it takes you to Clark v. Martinez, 543 U.S. 371 (2005). Professor Bagley's invocation of Clark is unsurprising because the U.S. House of Representatives relied on the same case in its brief to the Fifth Circuit in Texas v. United States as did Judge King's dissent. If you ask me, though, Judge Elrod's explanation of why Clark is distinguishable is persuasive:

The case on which the U.S. House relies involved different applications of an identical statute to different facts. Clark v. Martinez, 543 U.S. 371, 380, 125 S.Ct. 716, 160L.Ed.2d 734 (2005) (rejecting the argument that “the constitutional concerns that influenced” a previous interpretation of a provision of the Immigration and Nationality Act were “not present for” the aliens at issue in that case). This case is readily distinguishable because the four characteristics that made the previous interpretation possible—the production of revenue and other tax-like features—have now been legislatively removed. The limiting construction is no longer available as a matter of statutory interpretation. The interpretation must accordingly change to comport with what five Justices of the Supreme Court have said is the “most straightforward reading” of that interpretation.

Judge Elrod added the following in a footnote:

Contrary to the dissenting opinion's suggestion, a saving construction is no longer available. The canon of constitutional avoidance applies only “when statutory language is susceptible of multiple interpretations.” Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 836, 200 L.Ed.2d 122 (2018). In NFIB, § 5000A was amenable to two possible interpretations. It was either “a command to buy insurance” or “a tax.” NFIB, 567 U.S. at 574, 132 S.Ct. 2566 (Roberts, C.J.). After Congress zeroed out the shared responsibility payment, one of those possible interpretations fell away. What was then the “most straightforward reading” is now the only available reading: it is a “command to buy insurance” and “the Commerce Clause does not authorize such a command.” Id.

Professor Bagley doesn't respond to these arguments, and I'm not sure he could. After all, in the very same Atlantic piece he concedes that

  1. NFIB "held that Congress didn’t have the power to coerce people into buying health insurance";
  2. "If that’s what the individual mandate did, it would be unconstitutional"; and
  3. "[T]he penalty’s elimination mean[s] that the mandate d[oes]n’t look like a tax anymore."  

So, how can Professor Bagley argue that the very same mandate that NFIB held would be unconstitutional if enacted on its own became perfectly fine once paired with a penalty provision that does nothing, you ask? According to him, it's simple: while NFIB said that Congress lacked constitutional authority to enact section 5000A(a) as a standalone requirement that people buy insurance, what it really meant was that Congress lacked the power to coerce people into buying health insurance. In his view, if "a mandate backed by a penalty" isn't coercive then surely "a mandate backed by nothing" isn't either. Obvious, right? I wouldn't be so sure.

Professor Bagley assumes that as long as Congress doesn't include a coercive penalty provision in the text of section 5000A, the mandate itself isn't coercive and therefore doesn't exceed Congress's authority under the Constitution. But that simply isn't right. As Chief Justice Roberts explained in NFIB, a standalone mandate enacted under Congress's Commerce Clause authority is coercive even in the absence of any statutory text declaring it enforceable through a draconian penalty:

Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

As a result, by focusing on the amount of penalty associated with the mandate, Professor Bagley misses the point. The real question is whether the 2017 Congress enacted the TCJA under its commerce power or its taxing power. If the former, the lack of any penalty associated with the mandate does nothing to diminish its coercive character. If the latter, then it really is nothing more than a free choice. The trouble is, having admitted that section 5000A no longer looks like a tax, Professor Bagley must either admit that Congress enacted it under its Commerce Clause authority, which would raise serious constitutional questions, or else argue that Congress has authority under the taxing power to enact a law that "doesn't look like a tax."

As far as I know, though, he has never said which particular enumerated power he claims justifies the 2017 Congress's enactment of the TCJA. Instead, he insists that it's absurd to think that the 2017 Congress meant to coerce people into buying insurance by enacting a provision that zeroed out the penalty. Maybe that's right. Again, though, there's more to it than just what Congress "meant" to do. There's also how it did it. If it meant to create a completely free choice that could never be enforced through coercion but did so by invoking its power under the Commerce Clause to enact a standalone mandate, NFIB says it would nevertheless have exceeded its constitutional authority because laws made under the commerce power always permit "the Federal Government to bring its weight to bear."

And if Congress didn't intend to use its commerce power, then what power did it intend to use? The taxing power? If so, the question becomes whether Congress's taxing power includes the power to transform something that looks like a tax into something that "doesn't look like a tax anymore." Maybe it does. I don't know. But I sure wish somebody would show me some authority for that proposition or at least make the argument.

I want to conclude by reiterating that while I'm critical of Professor Bagley's arguments, I don't mean to say that the mandate is no longer constitutional now that Congress has zeroed out the penalty. As I've explained before, I think the 2017 Congress might have had authority to zero out the mandate under the Commerce Clause or the Taxing and Spending Clause. Here's my reasoning again, in case you're interested:

I also don't think NFIB required the Fifth Circuit to hold that the mandate is no longer constitutional. It is, of course, true that five Justices in NFIB agreed that the mandate wasn't a permissible exercise of the 2010 Congress's commerce power because instead of "regulat[ing] existing commercial activity," section 5000A(a) "compels individuals to become active in commerce by purchasing a product." Those who support the majority opinion's view assume that by zeroing out the penalty the 2017 Congress asserted the very same power to "compel[] individuals to become active in commerce." Isn't it at least possible to avoid that conclusion, though? NFIB emphasized that the 2010 Congress addressed the mandate to a set of people who had chosen not to purchase health insurance and commanded them to become active in commerce. The same cannot be said of the 2017 Congress, though. By the time the 2017 Congress enacted the TCJA, lots of people (including the individual plaintiffs) had already purchased insurance. Even assuming that the TCJA renders the mandate a standalone command to purchase insurance, it still couldn't be construed as "compel[ling]" any of those people--i.e. those who, by the time the TCJA went into effect, had already purchased insurance--"to become active in commerce." Given the court's duty to resort to "every reasonable construction ... to save a statute from unconstitutionality," why not construe the TCJA as a permissible exercise of the 2017 Congress's commerce power but only to the extent that it ordered people who had already bought insurance to maintain coverage?
And even if my hare-brained commerce-power argument fails, I'm also not convinced that the 2017 Congress necessarily exceeded its taxing power. NFIB holds that a mandate plus a penalty may be construed as a tax as long as the penalty (1) is paid into the Treasury and (2) isn't so large that it becomes punitive. Even assuming the penalty cannot possibly be construed as a tax anymore now that it generates no revenue, isn't it still possible that Congress had authority under the taxing power to zero out the penalty? I'm no expert on the taxing power, but surely it permits Congress to do more than just levy taxes. I would assume, for instance, that Congress also has authority to reduce taxes, meaning it would have been perfectly permissible for the 2017 Congress to reduce the penalty to $.01. Is it really so clear that Congress is utterly powerless with respect to that final penny? Better yet, consider this slightly different question: Gun to your head, are you telling me that Chief Justice Roberts doesn't have five votes for the proposition that--one way or the other--Congress's taxing power reaches that last penny, too?
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