More on Roberts' opinion on Obozocare

A contributor to the blog "View From the Right" read Justice Roberts' opinion on Obozocare, and was struck by what he considered to be its obviously flawed reasoning. Here's Roberts at p. 32:

Under the mandate, if an individual does not maintain health insurance the only consequence is that he must make an additional payment to the IRS when he pays his taxes. [cite omitted] That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.

Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like...gasoline or...income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. [cite omitted]. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

Justice Roberts seems to have fallen in love with his own cleverness: It's certainly true that courts are encouraged to strive to find a way to interpret a statute that will be constitutional if possible. For example, if some state legislature passed a law that, though constitutional, cited an improper provision or precedent, the courts have been known to look to the intent, as expressed in the overall language.

But seizing on this clever truism doesn't mean that a law that clearly violates one provision of the Constitution can be saved because it fails to violate a second, unrelated provision. Yet this is clearly what Roberts did.

It's easy to see why Roberts viewed the penalty for violating the mandate as a tax. See the first boldface phrase above: The statute provided that a person who failed to buy health insurance would pay the penalty to the IRS. Moreover, the U.S. Solicitor-General argued before the Supreme Court that it was a tax (after arguing just the previous day that is was NOT, since arguing that it wasn't was necessary to let the case be heard this year instead of four years from now).

But now listen to Obozo and the Dems join in the rising chorus: "It's NOT a tax!"