Chief Justice Roberts crafts a ruling more conservative than it looks
Conservatives are mourning yesterday’s Supreme Court decision upholding most provisions of the so-called Affordable Care Act. Some are accusing their erstwhile hero, Chief Justice Roberts, of betrayal. The administration and its supporters on the legal left are celebrating. To them, the chief justice shape-shifted overnight from bogeyman to great judicial statesman.
Both sides are being shortsighted.
President Obama’s signature legislative achievement survived judicial review, and in that sense he is entitled to a victory lap. But the court embraced the challengers’ interpretation of the Commerce and Spending Clauses, and upheld the statute on a ground the president had originally disavowed: that the healthcare mandate was really a tax on young healthy people who choose not to purchase health insurance at rates designed to subsidize their elders. The administration got the result it wanted, but the challengers won the constitutional argument.
Chief Justice Roberts’s opinion squarely rejected the administration’s theory that Congress can regulate anything it chooses so long as there is a substantial effect on commerce. “The power to regulate commerce,” he wrote, “presupposes the existence of commercial activity to be regulated.” The Commerce Clause “is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.” Indeed, “That is not the country the Framers of our Constitution envisioned.” On these fundamental points, the administration lost and the challengers won. A majority of the court has embraced limits on the Commerce Clause that liberal law professors not long ago were dismissing as frivolous.
The Spending Clause part of the opinion, which commanded the votes of seven of the nine justices, may be even more important than the Commerce Clause segment. The court held the healthcare statute unconstitutional when it threatens the states with a loss of existing Medicaid payments if they refuse to participate in the expansion of Medicaid. The precise contours of this holding are far from clear, but it suggests that Congress will have to revise its practice of using the federal power to tax and spend as a means of forcing states to adopt federal policy.
These are significant rulings in support of federalism and the ideal of limited government. They will reverberate in litigation for years to come.
The court upheld the health insurance mandate only by treating as a “tax” what the statute labeled a “penalty.” In this, the court bent over backward to avoid interfering with Congress’s legislative acts, and the dissenters have a point that the statute reads more naturally the other way. In terms of constitutional principle, however, this part of the decision is unlikely to have significant long-term consequences. The healthcare law could never have been enacted if it had candidly been described as a tax. The president denied it was a tax, and the Democratic Senate fastidiously avoided using the term. It is unlikely that Congress will be able to expand its power greatly in the future under the rubric of passing taxes.
The liberal supporters of the law thus won the immediate battle, but on the narrowest of all possible grounds. On all important points of constitutional principle, limited-government conservatism prevailed, and liberal arguments for expansive interpretation of federal power lost. In the long run, that will matter more than the fact that the healthcare bill survived. Chief Justice Roberts succeeded in doing the seemingly impossible: upholding the limited nature of federal enumerated powers and, at the same time, avoiding any possible accusation of judicial overreach. Through his deferential ruling on the taxing power, the chief justice made clear that he had no interest in interfering with congressional powers or in scoring points against the administration. The court’s interpretations of the Commerce and Spending powers are matters of constitutional principle, not political tactic.
The chief justice is taking the long view. What matters most for the American Republic is not the fate of this statute or the outcome of that case, but the long-term struggle over the meaning of the Constitution. Roberts’s deft opinion in the healthcare case strikes a mighty blow for conservative constitutionalism, while bolstering the court’s moral authority and reminding the country of the difference between law and politics. In the second paragraph of his lengthy opinion, Roberts writes that “[r]esolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.” His masterful opinion succeeded – to the surprise of virtually everyone – in respecting and reinforcing both of those limits. Conservatives may be upset now, but over time they will come to appreciate that they gained far more than they lost from this decision.
PHOTO: Religious leaders lie on the ground and pray over a Bible and a copy of the verdict on President Barack Obama’s signature healthcare overhaul law outside the Supreme Court in Washington, June 28, 2012. REUTERS/Jason Reed