Affordable Care Act: The Dissent

Today, Justice Roberts joined Justices Ginsberg, Sotomayor, Breyer, and Kagan in upholding the Affordable Care Act and individual mandate for health care reform as constitutional. In his opinion, he essentially ruled that while Congress cannot force you to buy health insurance, they can tax you if you don’t, making the individual mandate constitutional under Congress’ taxing authority.

From the SCOTUSblog:

Five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power.

In the 5-4 decision, Justices Kennedy, Alito, Thomas, and Scalia dissented.

Justice Kennedy delivered the dissent:

“In our view, the entire Act before us is invalid in its entirety.”

The dissenting opinion rejects the “broccoli analogy” raised by Alito, comparing the government forcing citizens to buy healthcare to the government imposing themselves in other markets:

The dissent dismisses the conclusion that the power to
compel entry into the health-insurance market would
include the power to compel entry into the new-car or
broccoli markets.

And “a vegetable-purchase mandate” (or a
car-purchase mandate) is not “likely to have a substantial
effect on the health-care costs” borne by other Americans.
Ante, at 29.

On the power of Congress to tax, the dissent argues that the way the individual mandate was written does not make it a tax, rather a penalty.

Thus, what the Government’s caption should have read was “ALTERNATIVELY, THE

The dissent continues, distinguishing a clear line between a tax and a penalty, one which was not made clear in the original language, and one that cannot be re-written by the court.

But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.

Basically, the dissent is arguing that the majority opinion wrongly classified the penalty as a tax and is essentially rewriting the individual mandate as a tax in order to sustain constitutionality.

For more, you can read the whole decision here.

After hearing both sides, what do you think?