Prior 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 telling 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 decision 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.