Chief Justice Roberts' opinion in National Federation of Independent Business v. Sebelius upheld the ACA individual mandate as a tax. Disagreeing with the joint dissenters (Alito, Thomas, Kennedy, and Scalia), Roberts, in part III-C of his opinion, demonstrates that the labels used by Congress can not be controlling. (Penalty versus tax.) The "question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise." (Roberts quoting Woods v. Cloyd W. Miller Co.)

Since this levy is within the Taxing Power, the characterization (label) Congress gives the exaction does not effect to its constitutional status as a tax.

Yet in Part III-D

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37. But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it. It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

the Chief Justice seems to say that only a strained reading of Congress's "label" and the doctrine of Constitutional Avoidance allow the mandate to be upheld as a tax. Isn't there tension between these two parts of the opinion?

  • Where do you see "penalty" in the quoted passage?
    – Greendrake
    Apr 21, 2020 at 1:47
  • @Greendrake the "penalty" is implied as a punishment for a noncompliance with the "command".
    – grovkin
    Apr 21, 2020 at 1:52
  • @Greendrake I am hoping to get a satisfactory answer before the bounty expires! Apr 4, 2023 at 16:21

2 Answers 2


Isn't there tension between these two parts of the opinion?

There is perhaps some tension, but the resolution of that tension is clear. There is certainly no self contradiction.

The most obvious tension is between the chief justice's line of reasoning and Justice Ginsburg's. It may be described thus:

  1. Justice Ginsburg would uphold the statute by interpreting it as a tax, avoiding the need to consider whether it is authorized as a command under the commerce clause.

  2. Chief Justice Roberts notes that the statute reads on its face as a command and says that this requires the court to find that this "more natural" reading is "not authorized" before it can consider other interpretations under the "duty to construe a statute to save it, if fairly possible." Only by following this line of reasoning may the court consider whether the provision may be upheld under the power of taxation.

The reasoning paraphrased in the first paragraph of this question explains that the court may go beyond congress's labels -- the claimed basis of its authority -- when it interprets a statute. The quotation from the opinion explains that it is however necessary to consider congress's claimed source of authority first, before moving on to other possible sources.

There is a bit of a chicken-and-egg nature to this: if we don't consider (and reject) the commerce clause argument, we can't justify the statute as a tax, but if we can't justify it as a tax, we have to consider the commerce clause argument. Ginsburg's reasoning would avoid this paradox.

Therefore, to the extent that a chicken-and-egg paradox is "tension," yes, there's internal tension in Roberts' reasoning, but not outright contradiction. The more significant tension is between Ginsberg's desire to avoid considering the commerce clause justification and Roberts' reasoning that requires it.

  • You are explaining label as "Most natural reading of claimed authority" and Roberts point in part III-C is merely that we can go beyond the (most natural reading of) claimed authority. But not necesarily as first resort. Strained readings however are almost always acceptable as a saving construction, in general. The part III-C point should be specific to claimed authorities. I think the fairest reading of Roberts quoting Woods v. Cloyd W. Miller Co. is that claimed labels are simply irelevant to constitutional authority. Congress can excercise an authority w/out even knowing it! Mar 31, 2023 at 18:52
  • @Grovkin I am hoping to get a satisfactory answer before the bounty expires! Apr 4, 2023 at 16:21
  • 1
    @NaftaliTzvi I think your comment to grovkin should be on the question rather than this answer (otherwise I don't think grovkin will be notified). Yes, Roberts quotes Woods for the reason you give, but "does not depend" isn't as strong as "simply irrelevant." Roberts says that the claim of authority controls the line of reasoning needed to reach a determination some authority exists. It doesn't limit the court to evaluating a law only in light of the claimed authority, but it does oblige the court to consider the claimed authority before turning to other sources of authority.
    – phoog
    Apr 5, 2023 at 5:18
  • I think I see what you mean. Apr 17, 2023 at 1:39

There is no contradiction.

Congress's invoked authority cannot be read as taxing authority, strained reading or otherwise. Congress intended a penaltly / command, there are no two ways around this. Roberts found that the penalty as such is unauthorised but Woods v. Cloyd W. Miller Co. allows a statue to be upheld on constitutional authority other than which Congress invoked. Nonetheless, Roberts in Part III-D limits Woods v Miller's implications to only saving constructions.

As first resort one must always consider the invoked authorities, which Roberts says "reads more naturally". (Not that his saving construction is a "less natural" or "strained" reading of the invoked authority. It in fact altogather disregards Congress's intended invoked authority as Woods v Miller allows. But Roberts considers the most "natural" reading of a statute's authority, and thus the required first resort, to be that which follows invoked authorites.) Only afterwards may other options be considered.

  • This answer is my best understanding of @phoog 's comments. If I misunderstood please correct me. If anyone else thinks they have a better/different answer I am open to hear! Apr 17, 2023 at 1:40
  • I think the alternative answer would be to draw a distinction between the statutary Authority (taxing power), to which the text and intent is truly irrelevant per Woods v Miller; and the statute's substance- A command and penalty under the "natural" reading (and commands cannot be authorised by Taxing Power) but under strained reading, as generally always allowed for a Saving Construction it can be a tax. The 2nd aspect wasn't explicitly addressed in part III-C because he took the saving construction for granted. But if so, doesn't the first issue disapear (and Miller not needed)?? Apr 17, 2023 at 1:54

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .