The Presumption of Constitutionality and the Individual Mandate

Every American law student learns that there is a difference between a statute\u27s meaning and its constitutionality. A given case might well present both issues, but law students are taught that the questions are distinct and that their resolution requires separate analyses. This is all for good reason: the distinction between statutory meaning and constitutional validity is both real and important. But it is not complete. Any approach to statutory interpretation depends on a view about the appropriate role of the judiciary (or other institutional interpreter) in our constitutional system; [a]ny theory of statutory interpretation is at base a theory about constitutional law. Moreover, some specific rules of statutory interpretation can themselves be understood as modes of constitutional implementation. National Federation of Independent Business v. Sebelius (NFIB) – and, in particular, the constitutionality of the Affordable Care Act (ACA)\u27s individual mandate under the tax power – is a prime example of constitutional and statutory intertwining. The crux of the tax question in the case was whether Congress permissibly exercised its tax power when it enacted the individual mandate. This was a question of both statutory meaning and constitutional validity: Was the mandate permissibly understood to impose a tax, and did it represent a constitutional exercise of Congress\u27s tax authority? According to some – including, critically, Chief Justice Roberts – the tax power cannot be used to command individuals. In the Chief Justice\u27s view, Congress can tax an otherwise lawful action or failure to act, but it cannot use its tax power to enforce a command that individuals act or not act in a particular way. Under that standard, the mandate could be upheld under the tax power only if it could be interpreted as taxing the decision not to purchase insurance without rendering that decision unlawful. Hence, whether the mandate could be upheld as a tax turned on whether it could be construed, as a matter of statutory meaning, to fit this constitutional definition of a tax. The correct answer is not obvious from the text of the mandate or the ACA as a whole. On the one hand, under the ACA the sole legal consequence of a covered individual\u27s failure to purchase insurance is that it triggers an additional fee, payable on the individual\u27s annual tax return. That fact – combined with the ACA\u27s multiple references to the tax code and Congress\u27s reliance on estimates that the mandate would raise $4 billion annually – weighed in favor of viewing the mandate as a tax but not a command. On the other hand, and in contrast to the ACA\u27s express references to taxes elsewhere in the legislation, the ACA refers to the mandate and its fee in terms of a requirement and a penalty, not a tax. For those and other reasons, it could be argued that the mandate was most naturally viewed as an exercise of the commerce power, not the tax power