Chief Justice Roberts found the individual mandate in Obamacare constitutional because he concluded that the mandate could be considered a tax, and that Congress has the power to tax the decision not to purchase health insurance. As we have discussed, Roberts didn’t find that the mandate is most accurately viewed as a tax. Rather, he found that it is “fairly possible” to view it that way.
The “fairly possible” test is a well-established method through which courts can avoid overturning the will of the people’s branches of government. If there is a fairly possible interpretation of statutory language that will save it from being held unconstitutional, courts will accept that interpretation. Again, they do so in the name of upholding the people’s will, as reflected in the decisions of those they elect, if fairly possible.
But in the Obamacare case there’s a nuance. The legislature and the executive represented to the public that the mandate is not a tax. Ordinarily, the use of labels is not particularly relevant, and perhaps labels should not carry much weight here.
However, when the labels affixed, and the framing used, by the people’s branches clearly are designed to make legislation palatable to the people, it can be argued that deference to democracy does not militate in favor of stretching to reject the labels and the framing through the “fairly possible” test. Here, the president and his fellow Democrats labeled and framed the exaction for not purchasing health insurance as a penalty because taxes are unpopular. Does it promote the will of the people to bend over backwards to countenance this deceptive approach to legislating?
Roberts might counter that, if Obamacare was passed through political chicanery, the people can fix this at the polls. It’s a fair argument, but perhaps naive. The public might deeply resent the chicanery, but wish to reelect those who committed it because (hypothetically) they give them credit for economic growth.
Moreover, the “political remedy” argument goes both ways. If the mandate had been struck down as a penalty, the people’s representatives could then try to enact it as a tax. This remedy would vindicate democracy because the mandate would then be enacted or rejected without the earlier deception, in the form and under the label that is required for it to pass constitutional muster.
UPDATE: I see that the always excellent Ann Althouse made a similar argument in one of the “picks” at the top of our page.