by Jeremy Leaming
Chief Justice John Roberts saved the nation’s top court from going over a cliff, barely. While a majority of the justices found the Affordable Care Act constitutional, they did so largely on Congress’s power to “lay and collect” taxes.
The Court’s majority opinion, however, found that the minimum coverage provision was not a regulation of commerce. The majority opinion also held that Congress can expand Medicaid coverage, but that it “is not free” to “penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."
ACS President Caroline Fredrickson praised the decision, saying:
The U.S. Constitution and the American people won an important victory before the nation’s high court today. The Supreme Court wisely resolved the health care case, despite all the political posturing on the right. Chief Justice Roberts’ majority opinion for the Supreme Court, upholding the Affordable Care Act’s integral ‘minimum coverage’ provision, has allowed for progress providing health care for tens of millions of Americans. It remains to be seen what the impact will be of Chief Justice Roberts’ understanding of the difference between ‘activity’ and ‘inactivity’ under the Commerce Clause.
The Obama administration argued that the ACA’s integral provision, the minimum coverage provision, which requires some Americans to purchase health care coverage starting in 2014 or pay penalty on their income tax filings, was valid under the Constitution’s commerce clause and the constitutional power of Congress to tax and spend.
Roberts, writing for the majority, did not buy the administration’s take on the commerce clause.
The minimum coverage provision, Roberts wrote, “does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory – empower Congress to make those decisions for him.”
Roberts said the government’s understanding of the commerce clause was not envisioned by Constitution’s framers. Roberts, citing Federalist No. 45, said James Madison “explained that the Commerce Clause was ‘an addition which few oppose and from which no apprehensions are entertained.’ While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have ‘always recognized that the power to regulate commerce, though broad indeed, has limits.”
But Roberts’ language on commerce clause power seemed to suggest that no radical limiting of the power was taking place. “The Framers,” he wrote, “gave Congress the power to regulate commerce, not compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”
But since the commerce clause did not sustain the health care law’s integral provision, Roberts turned to the other argument advanced by the government, which centered on the constitutional power to tax.
“Sustaining the mandate [minimum coverage provision] as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can,” Roberts wrote. “Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.”
Several constitutional law experts, who participated in an ACS briefing on the case, expressed caution over whether much had changed regarding the judicial precedent on the commerce clause. Instead several lauded the chief justice for finding a consensus to uphold the law.
Jeffrey Rosen said he was relieved and pleased that Roberts took the course of finding consensus. He said the opinion was narrow and “overruled nothing.”
“I think Chief Justice Marshall” would have been proud, he said.
Former U.S. Solicitor General Walter Dellinger said, “I think the court stepped back from the brink.”
“What is critically important,” Dellinger continued, is what the decision means for people with pre-existing conditions and the tens of millions who are unable to afford health care insurance.
He also called the upholding of the Medicaid expansion “enormous,” adding that he thought it would be “insane” for any state to turn down additional funding for Medicaid.
Dellinger did take a shot at the dissent lodged by Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito.
“It was breathtaking that four justices would have invalidated the whole law,” Dellinger said. He added that it would have been an “extraordinary revolution in constitutional law” if those justices had carried the day.
In a piece for The Huffington Post, UCLA law school professor Adam Winker said the opinion was important for sustaining the high court’s legitimacy.
“Roberts’ humble move was a surprise only because his oft-stated concern for protecting the Court by avoiding bold rulings doesn’t always hold,” Winkler wrote. “Despite today’s decision, the Roberts Court is hardly conservative in the sense of cautious or avoiding bold rulings. In contrast to an older conservatism that emphasized restraint, the Roberts Court is not hesitant to forcefully assert its power.”
Health care reform has been fought for by progressive leaders stretching back to FDR. A political movement launched quickly after President Obama signed the Affordable Care Act into law, sought to convince the public that the reform was not only bad policy but constitutionally suspect.
Today’s action by the Supreme Court, however, turned away those arguments and preserved reform. But as TPM reports, right-wing leaders in Congress are still bent on killing reform and denying tens of millions of people health insurance.
Senate Minority Leader Mitch McConnell said, “Republicans won’t let up whatsoever in our determination to repeal this terrible law.”
In a statement from the White House, Obama said today’s ruling reaffirmed “a fundamental principle that here in America, in the wealthiest nation on earth, no illness or accident should lead to any family’s financial ruin.”
“Today’ decision,” he continued, “was a victory for people all over this country, whose lives will be more secure because of this law and the Supreme Court’s decision to uphold it.”