Chief Justice Roberts comes into his own and saves the Court while preventing a constitutional debacle

Today, Chief Justice John Roberts delivered a heroic rebuke to the growing number of Americans who feared the Supreme Court had lost the ability to rise above the narrowminded partisanship that dominates the country’s political discourse.  More importantly, he and Justices Ginsburg, Breyer, Sotomayor and Kagan ensured that no contrived constitutional obstacle will stand in the way of millions of uninsured Americans who will finally gain health coverage under the Affordable Care Act.   And all Americans will now benefit from implementation of the law’s historic and desperately needed steps to bend the curve of our nation’s skyrocketing health care costs.

More than a year ago, writing in the Boston Globe, I made a simple point about the individual mandate that, at least for me, has cut through the seemingly endless debate and pages of ink spilled over alleged incursion of state sovereignty, the meaning of commerce and the protection of individual liberty.  I wrote that “this law doesn’t literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance.”  Fortunately, the Chief Justice ended up articulating essentially the same common sense view despite protestations and pressure from his conservative colleagues on the Court that he approach the case more artificially.

The Chief Justice’s opinion also rightly recognized that the additional tax liability imposed upon individuals who refuse to comply with the mandate is hardly a penalty at all, much less one sufficiently coercive to transgress the limits of Congress’s taxing power.  For example, Roberts notes that an individual making $35,000 annually would owe just $60 per month to the IRS for failing to obtain health insurance.  The average insurance policy, by contrast, would run about $400 per month.   Along with other protections of the Affordable Care Act, this taxing structure ensures that such an individual could pay the lower-priced penalty without losing the opportunity to purchase health insurance at a later date even if he or she were to develop a preexisting medical condition.

Though I cannot sufficiently underscore my pleasure at joining with millions of supporters of President Obama’s signature first-term achievement to celebrate the law’s preservation, I cannot deny feeling some anxiety about darker clouds potentially, although not inevitably, developing beyond today’s horizon but foreshadowed by other portions of the Chief Justice’s opinion.

In a step I had considered unlikely and entirely lacking in precedential, textual and historical support, five members of the Court determined that Congress did not possess authority under the Commerce Clause to regulate “inactivity.”   To begin with, I have consistently viewed the “inactivity” label as a misnomer – the decision to wait and see whether future health problems demand the purchase of insurance is, in fact, an active choice.  Even accepting the “inactivity” premise, however, does nothing to identify a plausible constitutional basis for so limiting the definition of what it means to regulate “commerce.”

In any event, contrary to a ridiculous allegation that Chief Justice Roberts somehow conspired to trick liberals with a win on health care into accepting newfound and exacting limits on the Commerce Clause, the dubious action-inaction distinction endorsed by today’s decision will likely do little to tie Congress’s hands going forward.  While congressional action mandating economic activity is certainly not unprecedented — Congress in 1792, with nearly two dozen Framers on board and with George Washington among them, enacted a statute requiring all able-bodied men to purchase firearms, after all — Congress rarely mandates behavior on an individual level to accomplish regulatory goals.  In other words, the federal code is not littered with other individual mandates for litigious scavengers to pick apart.

Thus for the same reason that this dispute over individual mandates grew into such an explosive battle, the action-inaction distinction in today’s opinion will probably play a larger role in history books than future cases.   And after this bruising political battle over health care reform and the largely successful effort of the law’s opponents to persuade many Americans that Congress should refrain from similar regulatory approaches, the individual mandate has lost much of its prospective legitimacy in the realm of popular constitutional discourse.   For this reason, Congress would have been unlikely to follow health care with similarly structured programs regardless of what the Supreme Court decided on the Commerce Clause question.

Still, I recall similar efforts to dismiss the doctrinal significance of another seemingly narrow holding that a federal law abridged Commerce Clause limits — the Court’s decision in 1995 in United States v. Lopez, in an opinion by Chief Justice Rehnquist invalidating the law banning the possession of guns near schools, an opinion that ended up ushering in a rejuvenation of the Commerce Clause that inspired a generation of conservative lawyers and jurists to bring and endorse the challenge to the Affordable Care Act that culminated in today’s ruling.

With future Supreme Court offices occupied by appointees of a President Romney, today’s limited holding could become the muse for another, perhaps more successful, wave of attacks on federal power.

Earlier today on this blog, Richard Epstein lambasted Chief Justice Roberts for missing the broader picture: how, Professor Epstein wondered, could Roberts find that congressional authority under the Commerce Clause to mandate health insurance purchasing went too far in constraining state autonomy and simultaneously conclude that congressional authority to achieve the same result under the Taxing Power fell comfortably within its limits?  As someone who has ardently defended the law under both constitutional provisions, I sympathize with the notion that the two positions may not be entirely reconcilable.

However, Epstein misses the extent to which Roberts took pains to cabin his holding within the confines of the constitutional text without ever aspiring, as many ideologically conservative commentators doubtless did, to accomplish a fundamental shift in the balance of power between states and the federal government.  For example, Roberts noted carefully that the text of the Constitution directly contemplates taxing inactivity – capitations, directly addressed in Article I, § 9, are taxes “that everyone must pay simply for existing.”  When it came to the Commerce Clause, however, the Chief Justice found that when the Framers wanted to grant Congress power to create something it could then regulate, like standing armies, it separately enumerated the creation and regulatory powers.

An additional and potentially more significant cutback on federal power came not just from the decision of Chief Justice Roberts to join a group of jurists who surely, if  they had their way, would have become solidified as the Four Horsemen of the Conservative Apocalypse, but from a seven-vote coalition surprisingly joined by Justices Breyer and Kagan as well.  These seven justices held that the statute’s Medicaid expansion subjected state governments to indefensible coercion by conditioning potentially all of their Medicaid funding on participation in the new coverage provisions.

Roberts’ opinion for the seven members of the Court on this point was careful to point out that its holding was limited to the Affordable Care Act and did not fix a definite line for other spending conditions going forward.  But the decision will surely be applied in many contexts by the lower courts, and the Chief Justice failed to make clear whether it was the sheer size of the potential financial penalty, the fact that the penalty for failure to participate in a new program was assessed against funding for an existing program, or a combination of those two factors that ultimately determined the outcome here.   If the inordinate size of the financial penalty dictated the Court’s resolution, Congress likely will face little constraint going forward—state budgets, after all, are so tight that a threat of even a small deprivation in federal funding will usually suffice to persuade states to bend to federal goals.  Predicting how the application of a line between funding new and old programs will affect other federal regulatory efforts, however, is much more difficult.

But enough prognosticating for the moment.  Progressive and pragmatic Americans alike have fought for decades — actually, for over a century — to extend health care to all of our country’s citizens, and at last, we are on the cusp of victory, and without compromising any of our nation’s deep constitutional commitments. I recall the moment in 2010 when it appeared all hope was lost—Democrats lost their sixtieth vote in the Senate, and the blame game for defeat had already begun.  But strategic thinking and a passionate commitment to reform gave Democrats under the bold leadership of President Obama the resolve to push the law through. Today, the Chief Justice took an equally bold step and did more than save the law—he saved an institution.