The problem with Constitutional scholars, in an (academic and hermeneutic) nutshell
Michael Stokes Paulsen, University Chair and Professor of Law at the University of St. Thomas, in Minneapolis and co-director of its Pro-Life Advocacy Center (PLACE), argues that CJ John Roberts got the ObamaCare ruling correct: while the power to tax is the power to destroy, Paulsen argues, “the power to elect is the power to repair” — that is, a political solution is the best and really only legitimate way to repeal ObamaCare (which repeal Paulsen is for, incidentally).
Fine. Now look at how Paulsen gets there:
[...] a tax is a tax, within Congress’s constitutional power to impose, regardless of what Congress calls it—a “fee,” an “exaction,” a “revenue enhancement,” or a “penalty.” Wielded with skill (or perhaps sinister finesse), Congress’s power to tax is an enormous and fearsome constitutional power, explicitly granted and subject to few limitations. It follows, then—unfortunately—that the Supreme Court’s recent decision in National Federation of Independent Business v. Sebelius, which upheld the individual mandate provisions of the “Affordable Care Act,” was constitutionally correct. [...]
NFIB v. Sebelius confirms that there is more than one way for the federal government to skin a cat. The Court held that the individual-mandate requirement, enforced by a penalty paid to the IRS with income tax payments, fell within Congress’s power to regulate or induce conduct through the power to tax. It made no difference that Congress did not label its financial exaction a tax. Something can fall within the taxing power of Congress even if Congress does not have the political courage to call it a “tax.”
Let’s pause here to unpack what’s being argued, because it is crucial to either side’s argument. For Paulsen (and, he argues, for Roberts, as well), the fact that they have determined, as interpreters met with the problem of having to navigate the constitutionality of an explicitly written (and passed, legislatively) “penalty,” that by “penalty,” Congress really meant”tax,” but lacked the courage to write a tax into the law. But that doesn’t mean that Congress doesn’t retain taxing authority — and that doesn’t mean the penalty they wrote into the law and ratified, because it functions like a tax, isn’t therefore a tax in effect, and so a tax in fact.
Or, to put it simply: Roberts thinks Congress lied; he thinks they intended not to call something that functions like a tax a tax; and he decided that just because Congress tried to hide the tax inside the language of a penalty, that doesn’t mean they changed the tax into a penalty — nor that they lack the authority to tax.
This is, to harken back to some earlier discussions of intentionalism, a valid reading of the statute. And yet it is an invalid ruling for the same reason: because Congress explicitly rejected the notion that what they were passing was a tax, the fact that we all know they meant to tax us is, per legal convention, immaterial. And that’s because there is no way, by looking at the legislative history or by reading the plain text of the law, to argue that Congress had not explicitly intended their tax in effect to take some other non-tax form in fact. Hence, “penalty”. And because there is no way of looking at the text of the law as written conclude that Congress hadn’t intended to avoid writing a tax, John Roberts’s ruling relies on subverting the conventions of legal interpretation and replacing the “penalty” with “tax” in explicit contradiction to the legislative desires and intent of Congress for passing the law — a distinct intent from how they hoped the “penalty” might ultimately function.
Which is an important distinction for purposes of the linguistic assumptions contained in just such a ruling. To wit: argues Paulsen:
[...] it is difficult to come up with a good, principled, fully persuasive argument that Congress lacks constitutional power to impose a tax for not having health insurance, as an incentive to get people to buy such insurance. The dissenters certainly did not come up with such an argument. They did not argue that Congress could not impose such a tax. Indeed, they conceded that Congress had the power to do so. Rather, the dissenters argued only that Congress did not impose a tax, because the legislation insisted on calling the exaction a “penalty.”
That is not an argument about constitutional power; it is not a claim that the taxing power is narrower than the majority said it was. Rather, it is an argument that the taxing power requires the invocation of magic words—that to use the taxing power, one must use the word “tax,” or something close to it, or at least something ambiguous. At the very least, Congress must not use the word “penalty.”
– and in one dismissive wave of the hand subverts the nature of the sign itself, granting the interpreter the power to rewrite the sign in order to “correct” it or clarify it.
Paulsen is correct: the dissenters didn’t argue that Congress could not impose a tax on freedom; they argued that Congress didn’t impose a tax, though not, as Paulsen and Roberts would have it, because the legislation” insisted on calling the exaction a penalty” — but rather because the legislators insisted on calling the exaction a penalty, and intentionally so. That is, those with the agency to produce intent and create signs — to use language to mean — meant to create a penalty that could function like a tax, but that wasn’t itself a tax.
This is what they wrote into law. This is what they voted on. And this is what CJ Roberts should have engaged. By treating the text of the law as if it could exist outside of both the intent of the legislators and the legal conventions that require that intent be as clearly discernible as possible, Roberts is relying on a linguistically incoherent sleight of hand — telling the legislators that though they may have found a way to create something that isn’t a tax but yet functions as one, he sees through their gambit, and he will not accept that what they intended to pass (a “penalty”) is what they intended for the purposes of collecting revenue (something that operates like a tax).
The dissent isn’t arguing, as Paulsen would have it, that the taxing power requires and invocation of “magic words”; it instead argues that for a tax to be a tax, it must be a tax — and not a penalty that merely functions as one. There are legislative conventions for passing tax bills. And Congress explicitly rejected using a tax for purposes of exaction.
By trying to minimize the importance of properly signifying — and the necessity in law of properly signaling intent — Paulsen is defending an idea of language that is linguistically dangerous: because what he is dismissing, when he balks at “magic words,” is the necessity, during signification, of the very process that turns language into language and a text into a text. That is, he is dismissing as unimportant the intent of a collective agency to create its own signs, and arguing that all that matters is that someone like John Roberts can read their text, untethered from the intent to signify what it is Congress intended to signify, as if they had created a different sign entirely, one in which the signifier “penalty” was attached to the signified “tax” and not to the signified “something perhaps constitutional that functions as if it were a tax without actually being one.”
Ironically, Paulsen and Roberts are right to conclude that Congress likely wanted to tax us without taxing us because they “lacked the political courage” to pass a tax. But the truth is, the finesse and skill used by Congress wasn’t to pass a tax they hadn’t the courage to pass openly; but rather the finesse and skill to find some way around having to create a tax and still collect exaction in a way that mirrors that of a tax.
This is what they created when they came up with the idea of using a penalty. And the dissent rightly noted that because Congress took that tack — that because it lacked to political courage to pass a tax instead of a penalty — it doesn’t after the fact get to argue that what it passed as a penalty was, in fact, a tax all along.
As I’ve said before, the solution for Roberts, had he not fallen prey to the textualist trap that disengages the legislation from the legislators — that is, that ignores the intent to mean and replaces it with a reading of what Roberts believes they really meant, when they weren’t busy coming up with a way to mean what they meant in order to pass the bill (finding something not a tax to collect the exaction of a tax) — was to note in his dissent that, while Congress has the power to tax, the power to tax is only Congress’s to have when they determine to use it.
In the legislation before him, they explicitly refused to do so.
And therefore, the law cannot stand as a tax — not because they didn’t invoke “magic words,” but rather because they clearly intended not to create a tax, relying instead on a different method of exaction that they believed might be just as effective as a tax without it being one.
To conflate the two is to do damage to the very idea of how signification works — and has the practical effect of giving the interpreter the power to ignore signaled intent in order to replace it with their own version of “secret” intent, which they then ascribe to the authors.
And the last thing we want to legitimate is having some powerful consensus conclude that it can rewrite our meaning, shackle us with its new text, and then suggest that their text is now ours to defend or deny.