“do not cross this line, because if you do we will have to deal with the fact that you crossed the line despite our telling you not to” - @bigsley, in a tweet

Years ago I had an argument with a friend about a No Parking sign in downtown Chicago. People aren’t allowed to park in front of it, you see, and anyone who does will likely get a ticket for $60. But no, my friend argued, this wasn’t the right way to look at the sign. In fact it simply indicated a very expensive parking spot, where if you were, for some reason, willing to pay an exorbitant price, you were free to park all day. Let us ignore, for a moment, the existence of Denver boots and tow trucks: which one of us was right?

In other words, what does it mean for something to be illegal? This turns out to be a complicated question, but we can give a causal answer easily enough. Something is illegal because the relevant state power, acting according to procedures that legitimated its actions, (1) forbade people to do it and (2) specified punishments for doing it. We might call the first part the prohibition and the second part the punishment. But these two parts aren’t exactly independent; without a prohibition, a punishment is just a consequence. Without a punishment, a prohibition is toothless and perhaps meaningless.

We might extrapolate from my friend’s view of No Parking signs that he believes prohibitions are always meaningless and punishments are always merely consequences. Let us call this view pragmatism. If a government were to promulgate a law that banned some activity but, through an oversight, fail to specify a punishment, to the pragmatist it would be as if that law had never been passed. This isn’t common, but it’s not just hypothetical either; in 2008, Massachusetts voters passed a ballot measure that decriminalized possession of small amounts of marijuana, making it a civil offense with a $100 fine. The new law, however, did not provide any enforcement mechanism for collecting the $100 from offenders who chose not to pay. Local government officials could always take them to small claims court, just like I could if somebody owed me $100 and wasn’t paying, but that would be far too much trouble and never happens. If you’re caught for pot in Massachusetts, then, do you owe $100, or don’t you?

A pragmatist would say no, but someone else might say yes; let’s call this latter fellow a conservative, for reasons that will become clear in a bit. To a conservative, there’s a big difference between a sign that says “No parking, $60 fine” and a sign that says “$60 parking.” The latter sign means that parking there is perfectly fine with the state (and the society for which it speaks), so long as you pay. The former sign means that the state is exerting its moral power to forbid parking in that spot, and also, separately, there is a punishment for disobeying.

In normal daily life, it doesn’t matter too much whether you’re a pragmatist or a conservative when it comes to the law. Whether you think of that $60 as a fine or a fee, you’d probably rather just park down the street. But there are occasions when these two legal theories come into conflict in ways that affect all of us. One of those occasions was last year’s high-profile Supreme Court case NFIB v. Sebelius, which upheld most of the Patient Protection and Affordable Care Act (PPACA, or “Obamacare”) against a constitutional challenge. The arguments in that case, and the uneasy compromise the Court settled on, cast a bright light into the often-unnoticed chasm between legal pragmatism and legal conservatism.

Background

As is often repeated but less often understood, the U.S. federal government is a government of enumerated powers: it can do exactly those things the Constitution gives it the power to do, and no more. Some governments can do whatever their constitutions don’t forbid them to do, but the U.S. federal government can’t do anything except what the constitution allows it to do.¹ Nothing is ever simple, of course, and the complicating factor here is the clause of the Constitution that says Congress has the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” For more on what exactly this means—that Congress only has the power to do certain things, but can also do whatever is necessary and proper to make those things happen—see the past 200 years of Supreme Court jurisprudence.

Since everything the federal government does needs to be justified by reference to at least one power granted by the Constitution, the main legal question presented in NFIB v. Sebelius concerned which section(s) of the Constitution, if any, granted Congress the power to enact the individual mandate, the centerpiece of the PPACA which requires almost all Americans to buy health insurance. In Congress’s opinion, one had to look no farther than the Commerce Clause, which gives Congress the authority to regulate interstate commerce, or maybe the Necessary and Proper Clause mentioned above—but to be honest, Congress didn’t really give the question much thought, and it tends to invoke the Commerce Clause and the Necessary and Proper Clause for all sorts of things. Despite Tea Party fulminations, the Democrats who passed the PPACA through Congress didn’t seriously believe the law would face a constitutional challenge in the Supreme Court.

They were wrong about that, and as it turned out they were wrong about the Commerce Clause too, or so the Court ended up ruling. That alone, however, was not enough to doom Obamacare. Why not? Well, it’s a fairly well established legal principle that Congress can be wrong about why it has the power to do what it’s doing. After all, it’s the legislature’s job to pass laws and the judiciary’s job to decide if they’re constitutional and why. One argument advanced in the PPACA’s defense was that, regardless of what Congress said, the law was justified by Congress’s taxing power, which allows a wide range of taxes to be levied with a few restrictions. This was a bit of a strange theory, and at first it was so politically problematic that the government—which was defending the law’s constitutionality—declined to even argue it: if the mandate was justified under Congress’s taxing power, then it was a tax, which the Democrats had been claiming all along it wasn’t. (In 2008, then-candidate Barack Obama had repeatedly pledged not to impose any new taxes on the lower and middle classes.) It fell to the Service Employees International Union (SEIU), which filed an amicus brief defending the law, to make a convincing case for the taxing power argument, and in the end the government, perhaps sensing that it had underestimated the danger of the court striking down the law, included a similar section in its own brief.

But what do taxes have to do with the PPACA? The law refers to the sum of money you owe if you fail to buy health insurance as a “penalty” or a “shared responsibility payment,” not a tax. But those are just words, the administration argued: the important thing is that the mandate essentially functions as a tax on being uninsured, so it should be treated as such. The conservative side’s response was that the mandate, which requires everyone to buy health insurance, and the punishment for ignoring the mandate, a financial penalty, were two entirely separate provisions, each requiring its own constitutional justification. Taxes, in this view, did not enter the picture.

In the end, Obamacare was saved only by the argument from Congress’s taxing power, which won over Chief Justice Roberts as well as the four liberal Justices. Both sides’ arguments over this seemingly tertiary point turned out to be not only decisive but also highly revealing.

Lawful and unlawful

The conservative argument on the taxation question is built around the idea of the unlawful. The brief for the 26 states challenging the PPACA reads in one part as follows (with citations omitted):

“The [individual] mandate is a stand-alone command that every ‘applicable individual shall’ obtain and maintain insurance. That command makes it unlawful for an ‘applicable individual’ (which means nearly any individual) to live in the United States without approved health care insurance. While section 5000A(b) imposes a ‘penalty’ on individuals ‘who fail[] to meet the requirement’ that the mandate imposes, that penalty provision only underscores that the mandate is, itself, a separate legal command.”

In other words, the PPACA orders everyone to have health insurance—a positive command which the conservative side immediately translates into a negative: it is unlawful not to have health insurance. This word “unlawful” conveys the prohibition aspect of the law, which is all-important to the conservative reader and meaningless to the pragmatist.

A pragmatist reading the PPACA as the conservative does, with the minimum coverage provision (as the “individual mandate” is actually called) completely separate from the financial penalty, would find that the former doesn’t actually seem to be mandating anything at all; on its own, if anything, it reads like a prediction, or at most an exhortation. Every “applicable individual shall” have insurance—and if they don’t, well, they don’t. To a pragmatist, there’s no such thing as a “stand-alone command.”

But no, the conservative would reply, it means something when Congress says everyone “shall” do something, even if it isn’t enforced at all, just like it means something when your mom orders you to clean up your toys even if she doesn’t threaten you with a punishment if you don’t. What it means is that you have to do it! Violating a command, whether “stand-alone” or enforced, places you on the wrong side of the law—not just that law in particular, but the law in general. A violation of the law isn’t just a choice to risk a legal consequence—it’s a small-scale rebellion against the established order. It is from this conservative point of view that the figure of the outlaw is visible; the pragmatist would see only a man or woman who’s made some possibly inadvisable choices.

Both of these views of the law, it should be pointed out, have respectable lineages. The pragmatist can trace his or her descent from the legal realists of a century ago, and before them Oliver Wendell Holmes, Jr., the great American jurist and Supreme Court Justice. Holmes’s elegant version of pragmatism is often known as the “bad man” theory of law. As he wrote in “The Path of the Law,” to a bad man, someone who doesn’t care about being a responsible citizen or following the rules, the law is nothing more than “a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.” The law is basically a matter of compulsion. From the bad man’s point of view, therefore, there’s no inherent difference between, say, a fine and a tax, or even a parking ticket and an expensive meter. Holmes hastens to add that not everyone is a bad man, and there are those who take moral guidance from the law—but the one thing the law represents to everyone, good or bad, is a guide to the actions of the courts, and so that is what the law really is; and now we have arrived at pragmatism.

Conservatism, perhaps unsurprisingly, traces its legal theory back to an older tradition. The reverence it maintains for the law, which has the power to issue prohibitions and imperatives as well as penalties, dates back hundreds of years, to a time when it went hand in hand with reverence for the authority behind the law. Monarchistic legal theory saw the legal system as emanating from the sovereign power, which is to say from the person of the monarch. In Discipline and Punish, Foucault describes the medieval theory of crime as follows:

“An offence, according to the law of the classical age, quite apart from the damage it may produce, apart even from the rule that it breaks, offends the rectitude of those who abide by the law […] Besides its immediate victim, the crime attacks the sovereign: it attacks him personally, since the law represents the will of the sovereign; it attacks him physically, since the force of the law is the force of the prince […] Punishment, therefore, cannot be identified with or even measured by the redress of the injury; in punishment, there must always be a portion that belongs to the prince, and, even when it is combined with the redress laid down, it constitutes the most important element in the penal liquidation of the crime.”

If we suppose for a moment that the lineage of monarchy leads directly to modern conservatism, it becomes much clearer why the anti-Obamacare brief makes so much of this word “shall.” When the sovereign, or in modern parlance the state, orders everyone to do something, that constitutes a grave and powerful act; the enforcement mechanisms and penalties are almost beside the point. A refusal to comply is a direct challenge to the sovereign—an insult to the very embodiment of the United States. We can understand, therefore, why conservatives would be so unwilling to have President Obama’s mandate to purchase health care sheltered beneath the legal protections of lese-majesty.

Magic words and quacking ducks

There is not, properly speaking, a liberal legal theory in the Obamacare case to oppose to the conservative theory of sovereignty. Instead, the government—and even more so, the SEIU—turned to pragmatism in defense of its signature legislation.

The SEIU brief treats the conservative argument with something approaching disbelief. It summarizes the relevant section of the states’ brief as follows:

“In every legally significant aspect, the minimum coverage provision operates as an income tax that satisfies the constitutional requirements for an exercise of Congress’s taxing power.

Opponents of the PPACA nonetheless insist that the minimum coverage provision cannot be upheld as a tax because the PPACA states that covered individuals ‘shall’ procure minimum essential coverage, and because Congress labeled the exaction a ‘penalty’ and not a ‘tax.’ Although they point to no aspect of the provision’s operation that is inconsistent with its status as a tax, according to the PPACA’s opponents, one of the most significant pieces of legislation in the last 50 years must be overturned for being improperly worded.

This kind of ‘magic words’ jurisprudence is not the law, and is deeply disrespectful of legislative prerogatives.”

“Magic words” jurisprudence is actually an apt name for the conservative theory of the law here, which, in keeping with medieval legal systems, finds the mere invocation of certain words to be highly significant and consequential. A recent New Yorker article offered a great example of this, from the still-extant medieval legal system of the small island of Sark, a British dependency in the Channel Islands:

“A Sarkee can still issue an injunction (to stop a neighbor from building a fence, for instance) by reciting the Lord’s Prayer in French and an oath called the Clameur d’Haro: “Haro! Haro! Haro! À l’aide, mon prince, on me fait tort!”

“Magic words” jurisprudence indeed! The Clameur d’Haro is an example of what we moderns might call a performative, a speech act that accomplishes something rather than merely describing something: other examples include “I promise” and (in the right context) “I now pronounce you husband and wife.” To a conservative reader, the PPACA’s use of “shall” is a powerful performative, a magic word from the sovereign that places a serious obligation on all “applicable individuals.”

I don’t mean to dismiss legal conservatism with this phrase “magic words”; in fact, it’s hard to imagine an alternative to pragmatist jurisprudence that doesn’t emphasize performatives. After all, how can we tell apart a sign that says “No parking, $60 fine” from a sign that says “$60 parking”? The difference between the two lies not in their effects but only in their language. If we are to draw a distinction between them, then, it must be about the language used. We must conclude, if we are to be conservatives, that specific linguistic forms have a power all their own.

If we are not to be conservatives, though, we’re free to ignore the particular words used and focus instead on what actually happens. Here’s how the SEIU reads the word “shall” out of the PPACA (with citations omitted):

“The minimum coverage provision can plausibly be construed as simply affording taxpayers the choice to either purchase insurance or pay a financial exaction. This is the only legal consequence for noncompliance that Congress established. The provision nowhere declares that noncompliance is ‘unlawful,’ and it specifically prohibits its enforcement through criminal proceedings.”

The point about the word “unlawful” seems perfunctory, and perhaps a bit uncomprehending. Mandating that people “shall” carry out an obligation and declaring it “unlawful” for them not to should have equal significance for a conservative, and equal insignificance for a pragmatist.² The question for a pragmatist is, what are you going to do to them if they don’t? As Holmes wrote, “A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.” The individual mandate, by this measure, is a “legal duty” only insofar as a failure to comply is negatively incentivized by the law.

As the SEIU points out, the “shared responsibility payment” for not having health insurance under the PPACA functions much like a tax: the amount you owe is determined by your income (if you make little enough, you can forgo health insurance and owe nothing at all), it’s collected by the IRS through the normal tax channels, and there’s no criminal component. It looks a lot more like, say, the mortgage interest deduction than the penalty for running a red light. To the law’s pragmatist backers, what matters is the so-called duck test: if it walks like a duck, swims like a duck, and quacks like a duck, it’s probably a duck. Conservatives can dub one component the “individual mandate,” Congress can refer to another as a “penalty,” and you can call the whole law an elephant if you want, but what matters is that it functions as a tax, which means it’s perfectly kosher under Congress’s power to tax.

Conclusion

The conservative side sees in the word “shall” a performative injunction issued by the sovereign, a violation of which would be a trespass against the law itself whose punishment is beside the point. In this respect conservatism preserves the principles of medieval monarchy, where, as Foucault puts it, “every crime constituted as it were a rebellion against the law.” The liberal side, on the other hand, argues pragmatically that “shall” is a word like any other, a word that, if it does anything, merely contributes to the law’s function, which is the real point here.

A compromise between these two sides is evident in many sections of Chief Justice Roberts’s ideologically incoherent opinion for the court, and gratifyingly we find clear evidence of this clash of worldviews in his ruling on the taxation argument. In a footnote, Roberts writes:

“Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.”

At first glance this may resemble the SEIU’s argument, and in substance it’s quite similar. But the word “lawful” (or “lawfully”) appears nowhere in the SEIU’s brief; the word, and the concept, are drawn from legal conservatism. To spot the hole in Roberts’s mashup of conservative terminology and pragmatic reasoning, we need only ask what happens if you don’t buy health insurance and don’t pay the resulting tax. According to Roberts, you’ve now (and only now) crossed the line between lawful and unlawful; according to tax law, you’ll be subject to a new, larger tax bill, including a further tax penalty for not paying the entirety of the tax liability you owed. At this point, you once again have a choice: pay the new tax bill, or don’t pay? If you pay, why, you’re in full compliance with the law; it turns out Roberts’s line was drawn in the wrong place. Roberts might object that it was lawful to forgo health insurance but unlawful to refuse to pay the PPACA’s shared responsibility payment, and you simply rectified your violation by paying the larger tax bill—but on what grounds could he possibly support that interpretation over the simpler and more commonsensical idea that it’s unlawful not to purchase health insurance and paying either resulting tax bill is the penalty that rectifies that violation?

The conservatives’ brief is concerned with distinguishing the lawful from the unlawful, and it sensibly finds a border running through the word “shall.” The SEIU’s brief, on the other hand, isn’t talking about what you can lawfully do; it’s talking about what you can do, and what will happen to you in response. To anyone concerned about what’s lawful, it’s clear that forgoing insurance and paying the resulting tax is much less lawful than buying insurance; if “shall” doesn’t mean that, it doesn’t mean much of anything.

¹U.S. state governments, for example, can do anything except what their own constitutions and the U.S. Constitution forbid them to do. Interestingly enough, despite all the conservative rhetoric surrounding Obamacare’s usurpations, the conservative legal arguments in NFIB v. Sebelius took for granted that any state could legitimately pass an individual mandate commanding its citizens to buy health insurance.

²Indeed, the SEIU’s 41-page brief includes the word “unlawful” only twice. Once is above, and the other is quoting an ordinance that declared it “unlawful” to engage in a certain occupation without paying a “license fee”—which the Supreme Court decided was a tax! A true victory for pragmatism.

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