But the government ultimately got what it wanted. Justice Roberts, joined by the four liberal justices, held that the mandate is authorized under the Taxing Power. Even though Congress and the president called the fee for not buying insurance a penalty — and even though Justice Roberts said the fee should be treated as a penalty under the Anti‐Injunction Act — when he interpreted the fee for constitutional purposes, what mattered was how the fee functioned, not how it was labeled. He concluded that the fee operates much the same as a tax and is therefore authorized under the Taxing Power.
Finally, Justice Roberts and six justices (all except Ruth Bader Ginsburg and Sonia Sotomayor) held that federally directed Medicaid expansion is unconstitutional if noncooperating states would otherwise lose all of their funding. That’s coercive. But if the states would lose only new funds for expansion, that’s permissible under the Spending Power.
From a constitutional perspective, the decision was a mixed bag. The good parts are new limits on the Commerce and Spending Powers. Those limits are very important going forward. But the Taxing Power argument could be pernicious. If the Roberts opinion were interpreted to mean that Congress could force you to do whatever it wants by penalizing you for not doing it — and if your only recourse were the ballot box — that would eradicate the notion of limited government under a republic bound by a Constitution.
On the other hand, that’s not quite what Justice Roberts wrote. According to him, when a tax crosses some threshold, it can become coercive and leave the individual no option. At that point, no one would pay the tax. Its purpose would be to force people to buy a product; it would be purely punitive and thus would no longer qualify as a tax. So the Taxing Power has a built‐in limit, although we don’t know precisely what that limit is. What we do know is that the Obamacare “tax” was too small to cross the limit. If Justice Roberts had upheld the mandate under the Commerce Clause, the power would have been unlimited.
If the limits on government are to be stretched, better under the Taxing Power than under the Commerce Clause. Taxes are politically toxic, and that limits their use. Moreover, the Taxing Power imposes monetary burdens when you do something wrong, such as not buying insurance. By contrast, the Commerce Power can impose prison when you do something wrong, such as violating federal drug laws.
The Roberts opinion is a masterpiece of political compromise. It gives something to everyone. It suggests that Justice Roberts was intent on consensus‐building and ensuring that the court doesn’t have an overtly political or ideological cast. Those motives aren’t inherently bad unless, as in this case, they lead to legal analyses that condone an unconstitutional law. That’s why Justice Roberts’ Obamacare opinion ultimately failed. Once again, the court found a way to expand the reach of the federal government at the expense of individual liberty.