Guest Blogger Scott Pilutik on the SCOTUS Health Care Case

 Scott Pilutik received his J.D. from Brooklyn Law.  His legal analyses have appeared in and been cited by numerous outlets, including The Village Voice.  Today he breaks down the legal intricacies and political ironies that shaped the Supreme Court’s 5-4 decision to uphold the ACA, popularly known as ObamaCare.


Credit: Christian Science MonitorPrior to yesterday’s U.S. Supreme Court decision on the Patient Protection and Affordable Care Act (the ‘ACA’), a consistent legal narrative had dominated discussions.  On the Left, the law was deemed constitutional because it falls well within Congress’s authority under the commerce clause to regulate interstate commerce.  That argument is best summarized by Andrew Koppelman, here.  On the Right, it’s unconstitutional because Congress’s power to regulate interstate commerce does not include the power to compel, best summarized here by the argument’s intellectual author, Professor Randy Barnett.

So when Chief Justice John Roberts began the day by announcing that Barnett’s argument had prevailed, you could almost forgive CNN and Fox for tripping over themselves to mistakenly report that the ACA’s individual mandate had been struck down.  But it didn’t work out that way.  As Barnett put it: “Who would have thought that we could win while losing?”

John Roberts and John Roberts alone, apparently.

Four justices (Breyer, Sotomayor, Ginsburg, and Kagan) found the individual mandate permissible via the commerce clause, while four other  justices (Scalia, Alito, Thomas, and Kennedy) emphatically did not, writing: “we would find the Act invalid in its entirety.”  In fact, they were more than emphatic.  Their dissent was fully joined, thorough, and strident.  It reads as if it were originally the majority opinion, a majority opinion that Roberts abandoned at some point.  Yes, I’m speculating.  But it seems more than Credit:Huffington Posttelling that the dissent repeatedly errs in referring to Justice Ruth Bader Ginsburg’s concurrence as a “dissent.”

And oh, what a “dissent” hers is.  If you want to understand why this really should have been an easy decision, read only the Ginsburg section.  She repeatedly cites Antonin Scalia’s opinion in Raich v. Gonzalez (2005) as her basis for the commerce clause’s validity.  Using their own words against each other is a snippy tactic the Supreme Court justices often resort to in their dissents, but given that Roberts probably flipped, inadvertently leaving Ginsburg on the winning side, it almost reads as if she’s twisting the knife.  Ha.

However, Justice Roberts found the ACA constitutionally valid under Congress’s power to tax, not under the commerce clause.  Starting from a common refrain of judicial restraint (“every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”)  Roberts found that the “penalty” imposed on anyone failing to purchase health insurance can instead be interpreted as a tax.

Some might read this as mere semantics.  But because Congress’s taxation power is narrower and less frequently resorted to than the commerce clause, fewer implications flow from this Ruth Bader Ginsburg ca. 1977decision than if five justices had upheld the ACA under the commerce clause.

On paper anyway.

Despite the “parade of horribles” imagined by the Right at the oral argument, where Justice Scalia infamously feared that the ACA would pave the way for Congress to mandate the purchase of broccoli, a warm front of similar freedom-crushing bills is not rolling through Capitol Hill any time soon.  So to the extent some commentators have read Roberts’ opinion as a clever Trojan horse to whittle the commerce clause to a ghost of itself, I’m far less troubled.

To be sure, the tax argument didn’t come from left field.  It was argued and briefed by the Justice Department, but nevertheless collected dust at the larger media roundtable.  However, it wasn’t ignored by constitutional law professor Jack Balkin.  Less than two months ago in The Atlantic, he noted that deciding the case under the general welfare clause was not only valid, but would be more politically expedient:

The tax argument offers them a way out.  Without deciding whether Congress can impose mandates under the Commerce Clause, the Court could simply interpret the mandate as a tax, and uphold it on that basis.  This would require no significant change in the law.  It would also signal that if Congress wants to impose mandates in the future, the Court prefers that it use the taxing power, and face the political consequences.

Justice Anthony Kennedy was always assumed to be the swing vote in this case, a role he often fills on a divided Court.  But presuming Roberts did indeed change his mind and left Kennedy the altar, there’s going to be no end of speculation as to what led Roberts there.  Perhaps he was persuaded by Balkin’s argument (see Balkin’s follow-up victory lap here). Perhaps he was genuinely frightened by what some have (rightly I think) identified as politicking and extremism by the four dissenters who were willing to toss the entire phone book-sized Act.

I personally think Roberts was concerned about the perceived legitimacy of the court.  As with Bush v. Gore, the case had become politicized and high-profile despite the general absence of political ideology in the underlying legal issue itself.

After all, if the ACA is tyranny, then what is the No Child Left Behind Act?  Oh, right, it’s a federally mandated set of public school education standards that decides how every American child will be educated hereafter, a bill that had the good fortune to be championed by and passed under a Republican president.

But at least the kids won’t be made to eat broccoli.  Their parents will just be taxed for it.

5 thoughts on “Guest Blogger Scott Pilutik on the SCOTUS Health Care Case

  1. The ” legitmacy of the court” may be a nice way to say that Roberts was looking to save his ass and avoid being the overseer of a decision that would have caused a great mess if the law were struck down. He definitely overreached here, avoided taking responsiblity and kicked the can down the road to the November Election.

    Now that the ACA is law, barring a republican victory, I look forward to having the same great health care that Cuba enjoys. Perhaps all those Brits and Canadians who come here for medical care will give us a break and go somewhere else.

  2. “No Child Left Behind” was a metaphorical drop in the leaky bucket of disintegrating, highly politicized public education standards and practice next to the chaotic, bloated bureacratic mess that will result from ACA. Yes, we needed a change. No, let’s not drown the baby in the bath water. These dramatic political flourishes of social brilliance often morph into expensive, destructive boondoggles. Here’s to elections, the lust for being/staying in power, and the monsters, bureaucratic & otherwise, they create.

  3. Just to clarify my point about No Child Left Behind, as I was not making a substantive judgment of NCLB, but rather comparing it to the ACA in a very narrow respect. The NCLB was passed without any of the same rancor still heard over the ACA, despite that both bills represent similar-in-scope federal expansions. It’s hard not to look back at the relative silence NCLB enjoyed and not conclude that the ACA is a victim of highly selective, insincere outrage, if you take its loudest opponents at face value.

    I could say the same thing about the varied fourth amendment encroachments undertaken by the Bush administration but most of those can be explained away by the right’s fetish for national security. But the NCLB was a social betterment program with a similar scope and reach as the ACA–and it involves your precious children! if NCLB didn’t exist and Obama were to try and pass it today, the bloodbath is just too easy to imagine.

  4. My precious children?

    Further, I honestly do not believe this is about any particular or imagined political “bloodbath” at hand. Rather, the passage of sweeping, often ineffective and counterproductive government-backed social programs, mainly for the purpose of scoring political points with whomever constitutes the base, points to the increasing detachment of those in power from the needs of those they purportedly serve. Sadly, it all seems to be about power and manipulation, distractive measures, rhetoric and posturing. The young, middle-aged and elderly are all affected. We probably have not had a really effective President since FDR. Unfortunately, we have a much larger population to deal with now.

  5. I don’t know about any of this, but I do know where I stand on “Stop and Frisk.” It’s a great way to meet girls.

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