Does Justice Roberts Obamacare opinion contradict itself?

Question

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?

Answer 1

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.

Answer 2

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.