Journal of health politics, policy and law
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J Health Polit Policy Law · Apr 2013
Wearing the crown of Solomon? Chief Justice Roberts and the Affordable Care Act "tax".
Attempting to play the role of King Solomon in his PPACA decision, Chief Justice John Roberts split the baby perversely by ruling it was not a tax under the Anti-Injunction Act, which would have likely deprived the Court of jurisdiction to hear this pre-enforcement challenge to the individual mandate, but it was a tax for taxing and spending purposes even though Congress said it was a "penalty" and not a tax. And the Chief Justice had to twist further his "wisdom" to hold that it was not an unconstitutional direct tax, even though that is exactly what it is, if it is a tax in the first instance.
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A great deal of the US Supreme Court's federalism jurisprudence over the past two decades has focused on the outer limits of federal power, suggesting a mutually exclusive division of jurisdiction between the states and the federal government, where subjects are regulated by one sovereign or the other but not both. This is not an accurate picture of American governance as it has operated over the past half century - most important areas of American life are regulated concurrently by both the federal government and the states. The Supreme Court's June 2012 decision clearing the way for the Patient Protection and Affordable Care Act (PPACA) to move forward thus should not be regarded as an affront to state sovereignty but as a realistic embrace of state power in its active, modern form. The PPACA is infused with multiple major roles for the states, and as the statute goes into operation over the next few years, states retain, and are already exercising, substantial policy discretion.