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Lose the battle, win the war?

A win for the mandate may prove to be a loss for federal power.

Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a disappointment.  Yet for those who hoped the Court would reaffirm that the Constitution creates a federal government of limited and enumerated powers and that it is the responsibility of the Court to enforce such limits, there is much to like in today’s decision.  While the Court upheld the PPACA, it reaffirmed the foundational principles of the nation’s constitutional structure and confirmed that the federalism decisions of the Rehnquist Court were not aberrations.  In a very real sense, proponents of federalism may have lost the battle, but won the war.

The opening of Chief Justice Roberts’ opinion for the Court is a clear and forceful restatement of the notion that the enumeration of powers in Article I is meant to limit the federal government.  This limitation, Roberts notes for the Court, is no less important for the preservation of individual liberty than the Bill of Rights.  This opening section effectively repudiates the notion, briefly embraced by the Court in Garcia v. San Antonio Metropolitan Transit Authority, that the primary safeguards against federal overreach are political.  It has been quite some time since these principles attracted such broad agreement on the Court.  Though the Chief Justice upholds the individual mandate as an exercise of the taxing power, this provides insulation against the exercise of such powers in the future. Never again will Congress be able to pretend that a penalty of this sort is anything but a tax.  As a consequence, such measures will only be adopted when they are truly supported by the people.

It would be tempting to read the Chief Justice’s discussions of the Commerce and Necessary and Proper Clauses as mere dicta.  It would also be wrong, as these analyses form an essential predicate to his ultimate conclusion that the mandate could be upheld as a tax.  As the entire Court accepts, the most natural reading of the minimum coverage provision is as an economic mandate adopted pursuant to the Commerce Clause.  It is only after rejecting the possibility that the mandate could be justified in this manner that the Chief returns to the text to see if it is susceptible to an alternative construction.  Thus, the only reason the Chief Justice even considers whether the mandate could be considered a tax, the statutory text notwithstanding, is because of his prior conclusion on the Commerce and Necessary and Proper Clauses.  Thus this decision provides five firm votes for meaningful limits on the most expansive of Congress’ powers.

The Chief Justice’s opinion also confirms that he is a judicial minimalist – and more so than any other member of the Court. His decision to adopt a narrowed, if strained, interpretation of the minimum coverage opinion so as to preserve the statute’s constitutionality is of a piece with what he has done before, in cases like NAMUDNO v. Holder, and FEC v. Wisconsin Right to Life (and, according to Jeffrey Toobin’s reporting, was prepared to do in Citizens United).  When possible, the Chief Justice prefers to decide less, leave precedents undisturbed and, as in this case, avoid overturning a federal statute – even if it means stretching statutory text or adopting stingy interpretations of prior opinions.  Whether or not one likes this approach to judicial decision-making, it is what we have come to expect.  It is thus no surprise that, as a 2010 NYT analysis found, the Roberts Court overturns precedents and invalidates federal statutes far less often than did the Rehnquist, Burger, and Warren Courts.

While commentators largely focused on the Commerce and Necessary and Proper Clauses, the Court’s treatment of the Spending Power is likely to have the greatest practical effect.  For years the Court has insisted that Congress’ power to impose conditions on the receipt of federal funds is limited without ever finding a limit it would enforce. The criteria outlined in South Dakota v. Dole made for a nice test, but it was a test that nearly every statute passed.  Today, however, seven Justices concluded that Congress could not condition the receipt of existing Medicaid funds on state acceptance of a Medicaid expansion, putting teeth into Dole’s admonition that Congress could not use the promise of federal funds to “coerce” state obedience.

The Court’s decision on the Medicaid expansion dramatically reduces the pressure for states to accept this part of the PPACA.  It will also limit the federal government’s ability to direct state implementation in other areas by threatening the withdrawal of federal funds.  Given the frequency with which Congress uses the power of the purse to induce state cooperation, new rounds of litigation on the spending clause are sure to follow.  Dole upheld a threat to withhold five percent of federal highway funds if states refused to adopt a 21-years-old drinking age.  But will courts uphold a threat from the Environmental Protection Agency to shut off the lion’s share of highway funds should states not adopt sufficiently stringent pollution controls on local businesses?  Perhaps not.  (For more on this point, see J. Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 Iowa Law Review 377, 433-52 (2005)).

NFIB v. Sebelius does not end the legal wrangling over the PPACA. Rather this case is only the beginning.  Barring action by Congress, the Court will see this statute again.  Several additional PPACA lawsuits are already pending in federal court.  These suits challenge everything from the structure of the Independent Payment Advisory Board to the mandate that employers provide contraception coverage as part of employees’ health insurance plans, and more are on the way.

The Court decided this case, but it did not resolve the legal or political debate over health care reform.  It did, however, decide this case in a way that reaffirmed foundational federalist principles, thus ensuring that federalist arguments will continue to receive a fair hearing from the judiciary.  If mandate opponents had to lose this case, this was the way to lose it.

Recommended Citation: Jonathan Adler, Lose the battle, win the war?, SCOTUSblog (Jun. 28, 2012, 6:10 PM),