Something for everyone
on Jun 28, 2012 at 5:08 pm
Gillian Metzger is the Vice Dean and Stanley H. Fuld Professor of Law, Columbia Law School
Chief Justice Roberts’ opinion in the health-care cases achieved what might have seemed an impossible result: claims of success from all sides, other than from Anti-Injunction Act aficionados. Most obviously, the mandate stands, and the President’s signature healthcare legislation is upheld. But by denying Congress the power to impose the mandate on commerce power grounds, Roberts sanctioned the inactivity-activity distinction advanced by the mandate’s challengers. And by holding that states who don’t want to expand Medicaid don’t have to, the opinion offers solace to states who resented having to substantially increase their Medicaid rolls.
The prime winner in all this is the Court. Chief Justice Roberts avoided invalidating major federal legislation decades in the making, while underscoring that Congress’s regulatory power is not unlimited and the Court’s central role in enforcing the Constitution. True, Roberts achieved this result only with some analytic fudging — Justice Ginsburg is right that the Court should not rule on the commerce power if upholding the mandate as a tax, as well as that the commerce power ruling is not consistent with precedent. But from the perspective of the Court, that seems a small price to pay for a decision that preserves its institutional stature and authority. It’s our modern-day Marbury v. Madison.
The impact on Congress and the states is harder to gauge. As an advocate of the tax power argument, I’m delighted to see the Court reaffirming the broad scope of this congressional authority. Although I disagree with the Court’s determination that Congress lacks power to regulate inactivity, this restriction may not have much practical consequence. It’s not hard to find the requisite constitutional activity in many contexts, particularly given Roberts’ reaffirmation of Wickard v. Filburn and insistence that a farmer’s being engaged in the activity of growing wheat is enough to allow Congress to regulate his failure to buy wheat for home consumption. The Court maintained that obtaining health care once or twice was not enough to make an individual permanently active in the health-care market. But it’s hard to see why Congress couldn’t require that individuals pay for the health care they obtain through health insurance or pay a penalty, or why Congress couldn’t impose the mandate on individuals who use health care above a minimum threshold.
The Spending Clause ruling portends greater import. Here again, Roberts gave something to everyone. The Medicaid expansion was upheld for willing states, thereby benefiting those who want to participate and preserving a key part of Congress’s reforms. Meanwhile states that don’t want to go along with the expansion don’t have to, and can continue to receive their prior Medicaid funding. How many states will pursue that course is unclear. One factor that seems likely to encourage participation is the high federal subsidization for the expansion, ranging from 90-100% of coverage costs over the next ten years. So states may feel substantial political pressure to go along and gain the benefits of this federal money for their state citizens, particularly since some of the individuals covered by the expansion would otherwise be subject to the mandate. In short, Roberts argued that political accountability mandated giving states a choice, but political accountability may yield the same outcome for many states.
Even harder to predict are the long-term effects on Congress’s spending power. Exactly why Roberts, (joined by Justices Breyer and Kagan) thought the Medicaid expansion was unconstitutionally coercive remains a question. It seems some combination of change in program, state reliance and settled expectations, and the overall amount states stand to lose — though the Chief Justice also insisted that size was irrelevant in determining coercion. Does that mean that changes in the conditions attached to federal education funds, another big ticket for state budgets, are similarly constitutionally suspect? Or is Medicaid is sui generis?
It could also be, as Justice Ginsburg insisted, that the Medicaid expansion’s constitutionality could have been solved had Congress first repealed the existing program and then enacted a new version covering everyone it wanted. If so, the constitutional win for the states here would be legally ephemeral. True, political constraints to such repeal and reenactment could be significant, but political constraints have always been a potent force in the Spending Clause contexts — it was politically lobbying by states, after all, that led to the high reimbursement rates for the Medicaid expansion.
This lack of clarity means that yet another group benefits from Roberts’ masterpiece as well: legal scholars and commentators, who will be parsing the impact of the Court’s ruling for years to come.