I am not going to promote any political agenda in this article, but I want to examine something that I have been thinking about, which is related to politics. It is also related to the law.
Recently, the United States Supreme Court heard a case and issued a decision in relation to President Obama’s Health Care law. The heart of the case was that 25 States sued the Federal Government and said that the Individual Mandate was unconstitutional. What is the “individual mandate?” Well, it is a part of the health care law which requires that every US citizen must purchase health insurance. Any US citizen who does not purchase health insurance will face a penalty that must be paid to the US Government.
Although it is very complex, the final decision of the Supreme Court was mixed. The final ruling was that the health care law is constitutional, and that it stands. However, there were different opinions issued that gave the decision a bit of a mixed result. Five justices, a majority (Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas and Justice Alito) ruled that the Individual Mandate, as written, is unconstitutional, because the Congress does not have the power to issue such a penalty to those who do not purchase a product (health insurance). Four Justices (Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan) ruled that the Individual Mandate was constitutional as written.
However, Chief Justice Roberts, while ruling the Mandate, as written, to be unconstitutional, he ruled in another part of the decision that he chose to interpret the “penalty” as a tax, and of course Congress has the power to pass a tax. So, for the final decision, Chief Justice Roberts switched and ruled with the more liberal branch of the court, making the law stand as written, only calling the Individual Mandate a tax instead of a penalty.
Now, considering all of this, I have been thinking of something that could have happened, and wondering to myself what would have been the outcome if the idea in my mind had played out.
What if this happened
Let’s say that the first part of the decision stayed as it played out – Chief Justice Roberts ruled that the Individual Mandate is unconstitutional as written, and cannot be considered a penalty. The same 4 other Justices sided with him. But, upon reflection, Justice Roberts decided that the Individual Mandate should be considered as a tax instead of a penalty. Upon coming to this conclusion, Roberts approached the 4 more liberal justices and informed them that he wished to join them to make a majority, but that the Individual Mandate would have to be considered a tax. Let’s say that one of those other justices could not accept this change. Say, for example, that Justice Breyer would not agree to go along with calling the Mandate a tax. What would happen?
You would be in a situation where Justices Scalia, Kennedy, Thomas and Alito would issue a ruling that the law is unconstitutional due to the Individual Mandate, as written, being outside the constitution. So, that would be the ruling of 4 Justices, not a majority. Next, there would be a ruling that the law was constitutional, because the Individual Mandate had been re-interpreted to be a tax, rather than a penalty as the law originally called for. Justices ruling this, given our example, would be Roberts, Ginsburg, Sotomayor and Kagan). Another ruling of only four justices, once again, a minority decision. Next, you would have an opinion that the law was constitutional as written, which would be issued by Justice Breyer. So you would have a split 3 way decision – 4 to 4 to 1. None would have a majority. Fascinating.
Would this constitute a Constitutional Crisis? What would the decision be – the law is constitutional or unconstitutional?
I know of a number of cases where the court could not reach a majority. All such cases that I am aware of happened when one of the Justices recused himself from the case for some reason, leaving the decision to a group of 8 justices rather than 9, thus the possibility of a 4-4 split. In such cases, it is my understanding that the ruling of the lower court (normally an appeals court) is left to stand as the final ruling. But, what about a case like this? The lower court had ruled that the law was unconstitutional, and the final decision in my example had 5 Justices saying it was constitutional, albeit for different reasons. There is no majority for any one side. So, what would happen?
I honestly don’t know, but I suspect that the lower court decision would have to be honored in my hypothetical case. What do you think?