Did Roberts Contradict Himself On The Tax Issue?

Is there a logical flaw in the way Chief Justice Roberts addressed the tax issue in his opinion? Not really.

John Podhoretz argues in his column this morning that Chief Justice Roberts contradicted himself in his ruling that the PPACA’s individual mandate survives constitutional scrutiny because it can be construed as a tax:

Like many people who read yesterday’s decision, I will go to my grave unable to reconcile the plain fact that on page 15 Chief Justice John Roberts says the bill’s mandate to buy health insurance isn’t a tax — only to say on page 35 that it is a tax.

In a beautiful turn of phrase, the four dissenting justices said Roberts’ contortion on this matter “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Roberts’ grotesque offense against elementary logic is so bald-faced, I’m almost tempted to believe he left it there on purpose, either out of perversity or as a not-so-hidden message that he had ulterior motives for upholding the constitutionality of ObamaCare.

Is it really possible that the Chief Justice made such a base contradiction that all the world can see? Well, let’s see what Podhoretz is talking about to figure out if that it’s true.

First, on beginning at the bottom of page 14 of his opinion, Roberts talks about the question of whether or not the mandate qualifies as a tax for the purposes of the Anti-Injunction Act, thus meaning that any lawsuit challenging it would lack standing until a tax is actually assessed:

Amicus argues in the alternative that a different sectionof the Internal Revenue Code requires courts to treat the penalty as a tax under the Anti-Injunction Act. Section 6201(a) authorizes the Secretary to make “assessments of all taxes (including interest, additional amounts, additionsto the tax, and assessable penalties).” (Emphasis added.) Amicus contends that the penalty must be a tax, becauseit is an assessable penalty and §6201(a) says that taxesinclude assessable penalties.

That argument has force only if §6201(a) is read inisolation. The Code contains many provisions treatingtaxes and assessable penalties as distinct terms. See, e.g., §§860(h)(1), 6324A(a), 6601(e)(1)-(2), 6602, 7122(b). There would, for example, be no need for §6671(a) to deem “tax”to refer to certain assessable penalties if the Code already included all such penalties in the term “tax.” Indeed, amicus’s earlier observation that the Code requiresassessable penalties to be assessed and collected “in thesame manner as taxes” makes little sense if assessable penalties are themselves taxes. In light of the Code’s consistent distinction between the terms “tax” and “assessable penalty,” we must accept the Government’s interpretation: §6201(a) instructs the Secretary that his authority to assess taxes includes the authority to assess penalties, but it does not equate assessable penalties totaxes for other purposes.

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate betreated as a tax for purposes of the Anti-Injunction Act.The Anti-Injunction Act therefore does not apply to thissuit, and we may proceed to the merits.

And here’s what he says beginning on page 35, where he is discussing whether the mandate can be found Constitutional under Congress’s power to collect taxes for the “General Welfare”:

[I]n Drexel Furniture, we focused on three practicalcharacteristics of the so-called tax on employing childlaborers that convinced us the “tax” was actually a penalty. First, the tax imposed an exceedingly heavy burden—10 percent of a company’s net income—on those who employed children, no matter how small their infraction. Second, it imposed that exaction only on those who knowingly employed underage laborers. Such scienter requirements are typical of punitive statutes, because Congressoften wishes to punish only those who intentionally break the law. Third, this “tax” was enforced in part by theDepartment of Labor, an agency responsible for punishing violations of labor laws, not collecting revenue. 259 U. S., at 36-37; see also, e.g., Kurth Ranch, 511 U. S., at 780-782 (considering, inter alia, the amount of the exaction, and the fact that it was imposed for violation of a separate criminal law); Constantine, supra, at 295 (same).

The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.8 It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by theIRS through the normal means of taxation—except thatthe Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution. See §5000A(g)(2). The reasons the Court in Drexel Furniture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” heremay be viewed as a tax.

None of this is to say that the payment is not intended to affect individual conduct. Although the payment willraise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. See W. Brownlee, Federal Taxation in America 22 (2d ed. 2004); cf. 2 J. Story, Commentaries onthe Constitution of the United States §962, p. 434 (1833) (“the taxing power is often, very often, applied for otherpurposes, than revenue”). Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns. See United States v. Sanchez, 340 U. S. 42, 44- 45 (1950); Sonzinsky v. United States, 300 U. S. 506, 513 (1937). Indeed, “[e]very tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.” Sonzinsky, supra, at 513. That §5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.

Clearly, Roberts is discussion two very distinct issues in these different section of the opinion. In the first, he is dealing with the discrete question of whether or not the PPACA mandate penalty qualifies as the kind of tax contemplated by the Anti-Injunction Act such that challenges would have to wait until at least 2015 to be filed in a Federal Court. In other words, it was purely a question of whether the Plaintiffs in the case had standing to challenge law at this time. The case law surrounding this issue tends to be complicated, but it was clear at the end of oral argument that none of the justices bought that argument.

In the second excerpt, Roberts is discussing the issue of whether the mandate penalty qualifies as a tax for Constitutional purposes. As he notes in his citation to the Drexel case, there have been many times in the past when the Court has held that something which appears to be a penalty was construed to be a tax for these purpose. This is a completely different question from the AIA and, contra Pohoretz, there is absolutely no logical or legal flaw in Roberts advancing both arguments.

FILED UNDER: Law and the Courts, US Politics, , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Ron Beasley says:

    Of course the real wingers are blaming his Epilepsy Medication.

  2. PD Shaw says:

    While I agree with Doug, I find the notion of the same word having different meanings in different contexts to be quite taxing.

  3. Matt says:

    You mean John Podhoretz in the linked column, not Jonah Goldberg, right?

  4. Yes I did. Fixed. Don’t even ask how I mixed those two up

  5. Your link takes me to a John Podhoretz article, not Jonah Goldberg. Not sure if it’s very important, since both are obvious hacks.

  6. James,

    Yes that was an error, it’s been fixed.

  7. @Doug Mataconis: Yeah, I got beaten to the punch.

  8. mattb says:

    @PD Shaw:

    While I agree with Doug, I find the notion of the same word having different meanings in different contexts to be quite taxing.

    I saw what you did there. +1

  9. Racehorse says:

    How about this for a law: all Supreme Court decisions must be written in plain, everyday, convenience store, barbecue restaurant, middle working class language!

    To our buddy Joe Wilson (“you lied”); it appears you were right all along! Apologies from everyone.

  10. jan says:

    Here’s another article relating to people talking about a possible contradiction in Robert’s ruling.

    Chief Justice Roberts: It’s Not A Tax, It Is A Tax; It’s Law, But It’s Not ‘Unlawful’ to Break It

  11. mattb says:

    @jan: Two comments on that link, one snarkier than the other.

    As far as I can tell the argument the editorialist is making seems to me to be an extension of the same one that Doug dealt with in the his article… right? Or did I miss something major?

    Also, it seems to me that the editorialist lacks the background to have his legal analysis be taken seriously ( http://cnsnews.com/source/terence-p-jeffrey-0 ). He does have a background as an editor of Conservative Papers, a Campaign Employee, and running a non-profit. But very little in his CV suggests that he’s got any real experience parsing legislation or legal decisions.

    So don’t mind me, but I’m much more prepared to look to practicing lawyers like Doug, PD and the folks over at Volk for whether or not the law contradicts itself. I’m sure Mr Jefferies can write from a position of understanding on a number of issues. But I see little evidence to suggest that this is one of them.

  12. mattb says:

    One more thing, just to be clear. I’m questioning the essayist not simply because I disagree with what he’s written (which I do), but because I don’t think he’s particularly qualified to be writing on this particular subject.

    IANAL, but I am married to one. And I know a bit about expert language. And I see nothing in Mr Jeffery’s background to suggest that he has the necessary training/experience to fully understand what he’s writing about.

    I’m not suggesting you need to be a genius — or necessarily even a lawyer — to analyze a decision. But on the other hand, assuming that someone who hasn’t spent a lot of time with the law can correctly understand the use of language is akin to thinking it’s a good idea to save money by representing yourself in court (’cause how hard can that lawyering thing be anyway?).

  13. DRE says:

    This issue is dealt with quite clearly in the sylabus of the decision:

    But Congress did not intend the payment to be treated asa “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–