To many conservatives, John Roberts' decision to uphold Barack Obama's health care law was a betrayal of shared principles. But while Roberts split from the court's conservative bloc, he rejected the logic of its liberal wing as well, instead saving the President's signature legislation with an argument that Obama himself specifically disclaimed.
The core of the government's case was that the individual mandate, which requires virtually all Americans to buy insurance or else pay a fine, was permissible under the commerce clause. The court's four liberals agreed. Not Roberts. The framers of the Constitution gave Congress "the power to regulate commerce, not to compel it," he wrote, arguing that it would be a dramatic expansion of federal authority, a "license to regulate what people do not do." Nor did Roberts accept the government's claim that it could compel the purchase of health insurance under the necessary-and-proper clause.
And yet, as Roberts wrote, "that is not the end of the matter." Citing an 1895 California case about maritime insurance, Roberts noted that when weighing whether to strike down a law, Justices have the duty to consider every reasonable way "to save a statute from unconstitutionality." Roberts' "saving construction" was that the mandate was in essence a tax and therefore protected by Congress's taxing power in Article 1 of the Constitution. It was not, Roberts conceded, "the most natural interpretation." The White House had insisted the mandate was not a tax but a penalty.
Even so, Roberts argued, the mandate has all the hallmarks of a tax by another name: it imposes a modest financial obligation, is not designed to be punitive and is collected by the IRS. "Because the Constitution permits such a tax," Roberts wrote, "it is not our role to forbid it, or to pass upon its wisdom or fairness." As Roberts saw it, the court's role was deference.