Today's Decision in NFIB v. Sebelius Being Frequently Compared to Marbury v. Madison (1803)

I would normally be posting a few more frequent updates to today's news out of the Supreme Court, but as I noted this morning, I'm trying to carefully digest all the information. No matter how things shake out with all the partisan debates (watch MSNBC for those), I expect Mitt Romney's pledge to act on "day one" against ObamaCare will have a galvanizing affect on the tea party grassroots of the Republican coalition. More on all of that later. Here I just want to highlight that aspect of Chief Justice Roberts' opinion that's generating some attention among legal scholars. Glenn Reynolds called the decision a Marbury moment, and others are now echoing that theme.

See David Kopel at SCOTUSblog, "Major limits on the Congress’s powers, in an opinion worthy of John Marshall":

The Roberts opinion also brings to mind Chief Justice Marshall’s opinion in Marbury v. Madison, 5 U.S. 137 (1803). Under intense political pressure from a president and his allies who demand that the judiciary submit to their unchecked will, the Chief Justice gives them the result they want in a particular case. Yet wrapped within that victory is a dramatic strengthening of the power of the federal courts to check the current President and Congress, and every future one.

In Marbury, the strengthening was the affirmation of judicial review itself. In NFIB, it is the first decision  striking a Spending Clause enactment because of coercion; the Necessary and Proper Clause restored to its pristine 1819 status; and a vibrant, broad construction of the commerce clause limits from United States v. Lopez, 514 U.S. 549 (1995).

None of this comes for free. Marbury was unjustly denied his commission as Justice of the Peace for the District of Columbia. Chief Justice Roberts’ ruling that the individual mandate is justified under the Tax Power is intellectually indefensible. He expressly says that the mandate is not a direct tax (e.g., a tax just for being alive). Accordingly, if the tax is constitutional, then it must be some form of “indirect tax”—such as an excise tax, or a duty. He writes that the individual mandate merely “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” (p. 32). Taxes on buying gasoline, or on the salary from your job, are straightforward excise taxes.

But the problem for Roberts is that excise taxes have always and only been applied for doing something (e.g., buying gas) or for owning something (e.g., a carriage). (Hylton v. United States, 3 U.S. 171 (1796).) There is literally no constitutional or tax law precedent for the notion that an individual can be subject to an excise tax merely for choosing not to buy a product. (The only thing that is even close to an exception to this rule is that a trust can be taxed for not distributing its assets pursuant to the terms of the trust. But a trust, unlike an ordinary American citizen, is an artificial legal person which was created for the sole purpose of performing an activity which the trust then refused to perform.)

Some modern scholars say that Chief Justice Marshall, too, had to cheat to get the result he wanted: that Marbury was incorrect to claim that Article III of the Constitution barred Congress from giving the Supreme Court original jurisdiction to issue writs of mandamus. Perhaps so.

But the bottom line is this: whatever political benefit President Obama gains from the continuing legal enforceability of his unpopular health control law and its widely-disliked individual mandate, plaintiffs who wish to challenge congressional and presidential overreaching have much stronger Supreme Court precedent than they did yesterday.

And see Daniel Epps at the Atlantic Online, "In Health Care Ruling, Roberts Steals a Move From John Marshall's Playbook," (via Memeorandum). And Tom Scocca at Slate, "Obama Wins the Battle, Roberts Wins the War":

Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.