Paul Mirengoff had some remarks on some of the implications of the Supreme Court’s ruling on the Patient Protection and Affordable Care Act. Chief Justice Roberts’ argument:
…the highly consequential debate between Chief Justice Roberts and Justice Kennedy over whether it is “fairly possible” to view the payment that must be made under Obamacare for not purchasing health insurance as a tax. Roberts’ view that it reasonably can be considered a tax rests, at least on part, on the claim that there is no prohibition against not buying health insurance. An individual can refuse to buy insurance, just as a basketball player can commit that last foul, though he or she will pay a price for the refusal.
Justice Kennedy’s argument:
Kennedy’s view is that the price one must pay for not purchasing insurance entails a prohibition. He quotes the great jurist Chancellor Kent as follows: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.”
Kennedy’s view of this matter is more persuasive than the Chief Justice’s. But remember, under rules of constitutional adjudication, Roberts’ view need not be the most persuasive one. As Kennedy concedes, it must only be “fairly possible.”
And here is the danger of, as Mirengoff puts it, the squishiness of “fairly possible.” Note that in this context, “fairly” has nothing to do with “fair,” as in a “fair coin.” “Fairly” here means sort of reasonable, a measure of plausibility. And that “sort of plausible” argument was allowed by Roberts to trump actual logic—and the facts of the matter that Congress had, in developing this law, explicitly removed tax language and replaced it in toto with penalty language. Roberts abused even the squishiness of the fairly possible “doctrine” to find a tax in the law where none existed so that he could preserve a claim of constitutionality of the PPACA.
Indeed, Roberts moved himself over the line into judicial activism. The judicially conservative thing is to strike a law that is unconstitutional, not to actively manufacture reasons for finding it constitutional. That is judge-made law.