The Supreme Court will not be a major political issue in the presidential election between Barack Obama and Republican Mitt Romney. That is the important secondary implication of Chief Justice John G. Roberts’ surprising decision to join with the court’s liberal bloc in upholding Obama’s signature domestic policy achievement, the Affordable Care Act, even as he rejected its premises on two counts as unconstitutional and un-American.
Whether or not that was Roberts’ motivation, he has enough political savvy to recognize the effect and enough concern about the court’s institutional standing to be glad of it. Roberts’ vote to keep the health-care law essentially intact answers the politicians and pundits who, along with a growing number of Americans, saw the court as overtly partisan, toeing a Republican line.
Before saving Obamacare, however, Roberts sided with Republican politicians, libertarian legal scholars, and the conservative commentariat in criticizing it. The individual health insurance mandate, Roberts said, amounted to “cradle to grave regulation” by a government of supposedly limited powers. “This is not the country the Framers of our Constitution envisioned,” he snapped.
Unconstitutional as well was the way that the Democratic-controlled Congress and the Democratic president decided to expand the federal-state Medicaid program to ensure health care for more of the nation’s poor. The federal government would be paying for the expansion, but Roberts said the provision allowing the government to withhold Medicaid funds from any state that did not go along was unconstitutionally coercive. “A gun to the head,” he termed it.
With those two passages, Roberts put himself on the side of that part of public opinion reflexively opposed to mandates and Washington. He also established, thanks to the votes of his four fellow conservatives in dissent, important legal markers for the future.
The federal government’s powers to regulate interstate commerce, we now know, cannot extend to forcing people to buy health insurance – or cars or broccoli. It is hard to imagine the next case where this will be important, but putting the fanciful broccoli analogy into U.S. Reports amounts to a signal victory for the libertarians who dreamed it up.
More importantly, Roberts and six other justices, including liberals Stephen G. Breyer and Elena Kagan, established an outer limit to the federal government’s Spending Clause power to use federal money to get states to go along with federal policies. The Court had never before found a federally imposed condition on federal money to be unconstitutional. That once-theoretical possibility is now real and as lawyer Kevin Russell pointed out on SCOTUSBlog could cast a shadow over federal anti-discrimination laws that threaten states with loss of federal money if they do not comply.
With these legal victories, it is no wonder that conservatives and libertarians view their glass as at least half full. “Lose the battle, win the war,” wrote Jonathan Adler, law professor at Case Western Reserve University, also on SCOTUSBlog’s free-for-all after the decision was announced. In like vein, Ilya Shapiro, editor in chief of the Cato Supreme Court Review, proclaimed, “We won everything but the case.”
Justice Ruth Bader Ginsburg spoke for all four liberals in complaining that Roberts’ disquisition on the Commerce Clause was unnecessary if he was going to uphold the individual mandate as a constitutionally valid tax. Roberts’ response is singularly unconvincing. He explained that he would not have been forced to construe the act’s penalty as a tax but for finding its major rationale invalid.
Once construed as a tax, however, the “exaction” from the relatively small number of Americans who do not have insurance but can afford it is clearly within Congress’s power. As Roberts noted, the Court’s precedents make clear, for example, that the federal government can tax a lottery even if it has no power to run one.
The political consequences of declaring the insurance mandate to be a tax can only add to its unpopularity. “ObamaCare Taxes the American People and the House Will Repeal It,” House Republican Leader Eric Cantor declared in the press release announcing the scheduled July 11 vote on scrapping the bill altogether. The release is good short-term politics even if the move is doomed to fail in the Democratic-controlled Senate – and in any event would be vetoed by Obama.
For many legal scholars, Roberts is also unconvincing in rejecting the individual mandate as an exercise of Congress’s Commerce Clause power. Ginsburg recapitulated the argument that the “shared responsibility” provision forces health care customers to prepay for care through insurance rather than risk imposing the cost of unforeseen and uncompensated care on others. Roberts conceded that states could impose the requirement through their police power; Ginsburg countered that Congress has powers commensurate with the nationwide nature of the problem.
Roberts’ tie-breaking vote to uphold the law takes the court out of the political cross-hairs of Democrats and progressives. The indignant denunciations from some conservatives will soon be forgotten, especially when Roberts returns next term as the conservative leader of a conservative Court. For the moment, however, Roberts took one for the team the Court even if none of his colleagues thanked him for it.