The John Roberts Doctrine: Stopping at Red Lights is Optional

By Terence P. Jeffrey

    

Are you required to stop your car at a red light?
In his opinion declaring Obamacare's individual mandate constitutional, Chief Justice John Roberts constructed an absurd doctrine of legal interpretation that, if consistently applied, would hold you are not.
The Roberts Doctrine of Lawlessness can be summarized as follows: You need not stop at a red light as long as you can afford to pay the penalty for running it. Red lights merely give motorists a "choice" of whether to stop or keep moving and pay the fine the government imposes for not stopping.
Let's see how our chief justice applied his doctrine to Obamacare:

Plaintiffs challenged Section 5000A, the mandate that individuals buy health insurance. It is titled, "Requirement to Maintain Minimum Essential Coverage."
It says: "An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."
It goes on to say: "If an applicable individual fails to meet the requirement ... there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c)."
Congress used three key words here: "requirement," "shall" and "penalty."
Merriam-Webster says a "requirement" is "something required." The same dictionary says "shall" is "used in laws, regulations, or directives to express what is mandatory." It further says a "penalty" is "the suffering in person, rights, or property that is annexed by law or judicial decision to the commission of a crime or public offense."
Given the plain meaning of the words Congress used in Obamacare's "Requirement to Maintain Minimum Essential Coverage," a reasonable person would conclude it "requires" that they "shall" maintain "minimum essential coverage" for health insurance. To make sure they fulfill this "requirement," it threatens them with a "penalty" in the form of a fine paid to the government.
This would be no different than Congress enacting a "requirement" that you "shall" stop your car at a red light on a U.S. Army base and that if you violate this "requirement" you must pay a "penalty." It would be no different, that is, except that Article 1, Section 8, Clause 17 of the Constitution authorizes Congress to make traffic laws for military bases, while the Constitution does not authorize Congress to order individuals to buy products they do not want.
In the initial elements of his opinion, Roberts argued that in crafting Obamacare's individual mandate Congress did give its key words their normal meaning.
First, he argued that the Anti-Injunction Act — which bars suits aimed at stopping the imposition of "any tax" until the after that tax has actually been applied — does not apply to Obamacare's individual mandate because the mandate is enforced with a "penalty" not a "tax."
"Congress, however, chose to describe the 'shared responsibility payment' imposed on those who forego health insurance not as a 'tax,' but as a 'penalty,'" Roberts wrote.
"There is no immediate reason to think that a statute applying to 'any tax' would apply to a 'penalty.'
Noting that Congress used the word "tax" elsewhere in the more-than-900-page Obamacare text, Roberts said, "Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally."
In arguing that the constitutional clause that gives Congress the power to regulate interstate commerce did not authorize Congress to enact the "Requirement to Maintain Minimum Essential Coverage," Roberts conceded that the "requirement" did indeed "mandate" and "compel" Americans to do what the government said.
"The Federal Government does not have the power to order people to buy health insurance," he concluded.
And that should have ended it. But Roberts insisted on directly contradicting himself.
"The text of a statute can sometimes have more than one possible meaning," he wrote.
"The most straightforward reading of the mandate is that it commands individuals to purchase insurance," he said. "After all, it states that individuals 'shall' maintain health insurance."
But then he rewrites into a "tax" what he had just said Congress had deliberately written into the law as a "penalty." Having done that, Roberts argues that people need not fulfill the "requirement" the law says they "shall" fulfill so long as they are willing to pay this "tax" for not fulfilling it.
"While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful," wrote Roberts. "Neither the act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS."
Nor may running a red light on federal territory result in any negative legal consequences beyond making a payment to the government.
But would Roberts say failing to stop at a red light on an Army base is not unlawful so long as the penalty is only a fine? He would if he were consistent in applying his Doctrine of Lawlessness.
Or perhaps he would, too, if it had been yet another thing necessary to complete his intellectually and constitutionally indefensible quest to maintain Obamacare's command that you "shall" buy health insurance.