By: Aaron C. Hall
June 29th, 2012
The phrase “judicial activism” has been in use for several years now, first by the Right, but it has more recently been adopted by the Left. Everyone seems to agree that judicial activism is bad, but we can’t seem to agree on what it is.
I believe a good illustration of what a non-activist judiciary should be is described in the following passage from the majority opinion of NFIB v. Sebelius (the Supreme Court case which upheld the ACA, aka “Obamacare”):
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
That is entirely true, and it is similar to what then-Judge John Roberts said during his confirmation hearings before the Senate, that judges are umpires, calling balls and strikes. To further this metaphor, let’s compare the pitcher to Congress, the pitch to a law, and the strike zone to the limits set up by the Constitution.
An umpire who calls nine strikes in a row isn’t necessarily rooting for the pitcher; it could just be that the pitcher legitimately threw nine strikes. Likewise, an umpire who calls all balls doesn’t necessarily reflect on the umpire. However, an umpire who calls a ball a strike and vice versa, is like an activist judge; his decisions are not based upon the rules, but upon which side he favors. A judge who routinely strikes down laws could just as easily indicate that the legislature has passed a slew of unconstitutional acts as it could that the judge is an activist.
Just because a pitch makes it into the strike zone, it doesn’t necessarily mean it’s a good pitch – it could be too easy to hit. Likewise, just as a law passes Constitutional muster, it isn’t necessarily a good idea. I’m not here to argue about whether Congress should have passed the ACA, or what its consequences will be, just whether the Supreme Court made the right call: ball or strike. In other words, does the above quote from the majority opinion actually apply to the decision the majority made.
For the “strike zone” two of Congress’s enumerated powers have been suggested as making Obamacare a “fair pitch.” The first is the Commerce Clause, and the second is the General Welfare Clause. The Supreme Court declared that the mandate was a Constitutional exercise of Congress’s authority to “tax and spend for the general welfare” as the latter clause allows.
Was this the right call, or did the pitch fly over the batter’s head, so to speak? It all depends on whether the penalty to be paid by individuals without health insurance, and by employers who do not provide health insurance is actually a tax. The Court’s job is not to find a way to uphold the law, its job is to determine what the legislature intended and if that intent matches the Constitution.
Generally speaking, there are two methods that judges have employed to interpret laws to determine legislative intent: (1) Textualism and (2) the use of Legislative History, namely Conference Reports and Floor statements. While I prefer textualism, I will not be weighing one against the other here.
Under textualism, the Court is to read the statute and determine what it means based upon the language contained therein and nothing else. Whatever the proponents of the legislation have said is irrelevant. Congress did not vote to enact floor statements; it voted to enact the text of the act.
Legislative History, instead, includes conference reports and floor statements about the legislation, the argument being that members of Congress do not read actual bills, but instead the summaries thereof, written by legislative aides. Whatever the text of the act itself, what Congress intends is contained in Conference Reports.
Nothing in either the legislative history or the text of the ACA itself indicates that the penalty to be paid by the uninsured is a tax; the word “tax” was not to describe this penalty except by its opponents during the legislative phase, and by the Justice Department’s lawyers in the litigation phase.
Chief Justice Roberts stated it was a tax because the payment is made to the IRS; however, this use of extrinsic information is contradicted elsewhere. For one, the ACA originated in the United States Senate. Under the Constitution, tax bills must originate in the House of Representatives. This indicates that either: (1) Congress acted against the Constitution by originating a tax in the Senate or (2) it is not actually a tax.
For another, from the dissent in NFIB v. Sebelius:
Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide forthe support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But 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 exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U. S. 20, 38 (1922).
Had Congress wanted to enact this as a tax, it should have:
(1) Started the legislation in the House, as required by the Constitution.
(2) Made it universally applicable (everyone pays the tax up front), and create a tax credit for those who have insurance.
(3) Actually call it a tax somewhere.
Had Congress done that, I still would have objected on policy grounds, but I would have accepted the law as constitutionally sound.
In short, NFIB v. Sebelius is the height of judicial activism. The majority invented language that existed nowhere, and downright ignored the limits of the Constitution. All of this is akin to an umpire seeing a pitch fly one foot over the head of a batter and say, “Well, I think the pitcher intended to get it into the strike zone, and I think the strike zone is too small anyway, so I’ll call it a strike.”
