Ronald Dworkin has published a New York Review of Book Essay on the Supreme Court’s health care decision. The essay has all of the characteristics of the typical Dworkin NY Review essay: it stakes out the liberal position, argues for it with power and verve, but in the end is often to me unpersuasive.
Dworkin spends some time criticizing Chief Justice Roberts’s opinion. As readers may remember, I am no friend of his opinion, but I don’t agree with much of Dworkin’s criticism. Let me just discuss one issue. Dworkin is upset that Roberts first concludes that the Congress does not have the power to impose the mandate under the Commerce Clause before concluding that Congress does have the power to do so under its Taxing Power. Dworkin writes:
That combination of rulings is surprising. By long tradition, as Ginsburg pointed out in her separate opinion, a Supreme Court justice should not offer to decide constitutional issues that it is unnecessary for him to decide. Since Roberts declared the act valid because it is a tax, he had no reason gratuitously to declare that it was not a valid exercise of the commerce power. He should have explained that though the issue of the commerce clause had dominated the long argument about the act, and was thoroughly discussed in the other justices’ opinions, it was not necessary or proper for him to express an opinion about it. His explanation of why he had to declare an opinion was feeble: he said he would not have construed the act as a tax if he had thought it valid under the commerce power. But how can whether a statute is a valid exercise of one congressional power depend upon whether or not it is a valid exercise of another power? Roberts apparently thinks that the case that the act is a valid tax grows stronger as the argument that it regulates interstate commerce grows weaker. That is alchemy, not jurisprudence.
Dworkin’s argument here is problematic. There are two canons that are potentially applicable to this issue. One is the canon that says don’t decide constitutional issues unnecessarily. Roberts should not discuss whether Congress has the power under the Commerce Power if Congress has it under the Taxing Power. But there is another canon that Roberts invoked. Roberts argued that while the ordinarily reading of the statute would indicate that the mandate was a penalty, not a tax, a different canon said construe the statute to be a tax, if that was a possible reading of the statute, to avoid holding a statute unconstitutional. This second canon thus requires reading a statute in an inferior way to avoid holding it unconstitutional.
Roberts thus decided it was necessary to reach the Commerce Clause issue in order to justify reading the penalty as a tax. Now, Dworkin might say that Roberts should have just applied this second canon to the statute and upheld it as a tax, without reaching the Commerce Clause issue. But it is not clear that is correct. Roberts might reasonably have concluded that mangling the statute to uphold it as a tax was only justified if it was actually necessary to avoid holding the statute unconstitutional.
Thus, Dworkin’s conclusion – “Roberts apparently thinks that the case that the act is a valid tax grows stronger as the argument that it regulates interstate commerce grows weaker. That is alchemy, not jurisprudence” – while catchy is off the mark. Roberts’s argument may not be Dworkin’s preferred jurisprudence, but it makes sense and is certainly well within the traditions of the Supreme Court’s jurisprudence.