Laws and Orders

Ramesh Ponnuru believes that Justice Roberts has ignored the normative dimension of law:

The difference between a mandate and a tax is precisely the difference between, on one hand, a command that the citizen is morally obligated to obey and, on the other hand, a set of options open to the citizen that the government has merely structured through its announcement of its likely responses to his choice. With a mandate that incurs a penalty, the government is telling citizens that they must buy insurance. To fail to buy insurance is to break the law. In the case of a tax, conscientious citizens would have no such moral obligation. They would behave fully lawfully in not buying insurance, but they would have to pay extra to exercise that option. Similarly, they act perfectly lawfully in buying beer but have to pay sin taxes.

The key question in Chief Justice Roberts’s analysis was which of these things the government was trying to do in the Obamacare law. He chose to answer the question in precisely the wrong way: a way that guaranteed he would reach the wrong result.