Marshalling Precedent: With Nod to Predecessor, Roberts Affirms Mandate
2:05 PM, JUN 28, 2012 • BY ADAM J. WHITE

weeklystandard.com

In September 2009, President Obama disagreed vehemently with the notion that the Affordable Care Act's individual mandate was a tax: "A responsibility to get health insurance is not a tax increase," he told George Stephanopolous. And even on the eve of oral argument, the president's Office of Management and Budget told Congress that the mandate was not a tax.

Nevertheless, the Justice Department made precisely the opposite argument in the federal courts, and that argument ultimately persuaded the Supreme Court. Today, the Court held that the individual mandate is a lawful exercise of the Constitution's tax power.

The decision was 5-4—or, more accurately, 4-1-4. Chief Justice Roberts's lead opinion created a 5-4 majority holding that the individual mandate was not a constitutional exercise of the Commerce Clause power, and a 5-4 majority holding that the mandate was a constitutional tax.

The decision's details will be parsed endlessly, in terms of both legal doctrine and political ramifications, but in the end it stands for something much more historically significant.

Since Roberts's appointment as chief justice in 2005, commentators have noted time and again his appreciation of the Court's history, and specifically his appreciation of Chief Justice John Marshall. Roberts occasionally highlights the point himself.

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supremecourt.gov