Obamare still valid: reduction to zero of the tax just renders mandate an ‘anti-directive’ o ineffective

The Supreme Court will decide this term (maybe) the fate of the Afforable Care Act (ACA) a.k.a Obamacare once again. In California v. Texas, one of the questions presented is whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum-coverage provision unconstitutional. This is amount is the one considered to be a tax more than a penalty and because there is no tax, hence, the there is no condition precedent to justify the constitutionality of the mandate to acquire health insurances as held by the Supreme Court in NFIB v. Sebelius .

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It is plausible to make an argument about how ruling against the validity of Section 5000A(c) is such a bad reading of both the statute and Chief Justice Roberts’ opinion in NFIB v. Sebelius. But, from the legal theory standpoint, there is a more interesting argument to look at; the argument about how the lack of any enforcement possibility of a particular norm does not render it contrary to the rule of recognition or to the Constitution.

The reduction to zero of the tax/penalty does not render the norm invalid, even if such “penalty” was read as a “tax” by the Supreme Court and it disappeared. What happens is that language imposing an obligation to acquire a health insurance is not longer back by a sanction or, broadly speaking, by any condition subsequent in case of non compliance.

From a Austinian or kelsenian point of view, it can be argued, the norm cannot longer be without sanction. The reason d’etre of a normative system is the existence of norms back with sanctions to secure its obedience (broadly speaking) or compliance. But, as argued by Hart and others, a normative system still is if its norms or prescriptions are not necessarily backed by sanctions. What it is required from a legal statement is a deontic qualifier to be deemed a norm (i.e order, mandate, obligation, prohibition, duty, permit, enabling, etc) . Because the the Section 5000A(c) is a norm given its deontic nature, the fact that express no sanctions for its non-compliance or obedience, it is irrelevant for the nature of the norm or its existence. It would be another obligation from which the law, as planned, request respect or obedience.

We cannot confuse the existence of a mandate and the efficacy of a mandate. But if sanctions still matter for mandates or norms, is only to secure the aims or objectives behind the enactment of the norm. It helps in terms of efficacy and efficiency, but, it is no necessary condition to deem it as a norm. In addition, the system does not provide a rule or principle that in the lack of enforcement mechanisms or sanctions backing a norm cannot longer be nor exist in the normative system. If such legal rule or principle exists, then, it will be the product of the Supreme Court and not from a rule of recognition or any dependent rule bound thereof.

Hence, the reduction to zero of the tax/penalty in Section 5000A(c) can relate to an anti-directive. In legality, S. Shapiro defends a notion of anti-directive as a permit when there is no obligation or requirement to the subject to do something nor to omit something. Can we apply such notion to Section 5000A(c)? Of course.

ACA mandates a health insurance, but, in fact, because there is no tax/penalty to back the mandate. People have now an option to comply with the mandate or to omit it, without having to face the payment of any tax/penalty creating no financial incentive to obey the norm; there might be a moral incentive to have a health insurance as provided by the ACA, and the government can carry on politics to nudge the acquisition of health insurances, but, to apply sanctions?no; of subjects be aware or organize their lives in the face of possible tax/penalties? no. Therefore, form the standpoint of the subject of the norm there is in fact no sanction-backed order to comply nor reason to omit compliance. The efficacy and effectiveness of the norm now rest somewhere else.

Although part from the sentence as part of the nature of a norm, I can take the argument when we talk about efficacy of the mandate. From such standpoint, Section 5000(a) is no a obligation nor a requirement, it is a permit. The norm is allowing its regulated subject to choose from whether to comply with obtaining an insurance, or no. The fact it is a mandate does not mean in itself a problem. Formally speaking it is a mandate or an order to obtain an insurance. But in terms of enforcement, because the tax-penalty is now at zero, de facto it becomes a “permit”.

In conclusion, whether Section 5000A(c) is unconstitutional cannot rest of the fact that the penalty/tax is now at zero. If there is no incoherence or incompatibility between Section 5000A(c) and the Constitution, then, it will be unwise to hold unconstitutional Section 5000A(c), just because of efficacy or efficiency.