Chief Justice Roberts crafts a ruling more conservative than it looks

By Michael W. McConnell
June 29, 2012

Conservatives are mourning yesterday’s Supreme Court decision upholding most provisions of the so-called Affordable Care Act. Some are accusing their erstwhile hero, Chief Justice Roberts, of betrayal. The administration and its supporters on the legal left are celebrating. To them, the chief justice shape-shifted overnight from bogeyman to great judicial statesman.

Both sides are being shortsighted.

President Obama’s signature legislative achievement survived judicial review, and in that sense he is entitled to a victory lap. But the court embraced the challengers’ interpretation of the Commerce and Spending Clauses, and upheld the statute on a ground the president had originally disavowed: that the healthcare mandate was really a tax on young healthy people who choose not to purchase health insurance at rates designed to subsidize their elders. The administration got the result it wanted, but the challengers won the constitutional argument.

Chief Justice Roberts’s opinion squarely rejected the administration’s theory that Congress can regulate anything it chooses so long as there is a substantial effect on commerce. “The power to regulate commerce,” he wrote, “presupposes the existence of commercial activity to be regulated.” The Commerce Clause “is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.” Indeed, “That is not the country the Framers of our Constitution envisioned.” On these fundamental points, the administration lost and the challengers won. A majority of the court has embraced limits on the Commerce Clause that liberal law professors not long ago were dismissing as frivolous.

The Spending Clause part of the opinion, which commanded the votes of seven of the nine justices, may be even more important than the Commerce Clause segment. The court held the healthcare statute unconstitutional when it threatens the states with a loss of existing Medicaid payments if they refuse to participate in the expansion of Medicaid. The precise contours of this holding are far from clear, but it suggests that Congress will have to revise its practice of using the federal power to tax and spend as a means of forcing states to adopt federal policy.

These are significant rulings in support of federalism and the ideal of limited government. They will reverberate in litigation for years to come.

The court upheld the health insurance mandate only by treating as a “tax” what the statute labeled a “penalty.” In this, the court bent over backward to avoid interfering with Congress’s legislative acts, and the dissenters have a point that the statute reads more naturally the other way. In terms of constitutional principle, however, this part of the decision is unlikely to have significant long-term consequences. The healthcare law could never have been enacted if it had candidly been described as a tax. The president denied it was a tax, and the Democratic Senate fastidiously avoided using the term. It is unlikely that Congress will be able to expand its power greatly in the future under the rubric of passing taxes.

The liberal supporters of the law thus won the immediate battle, but on the narrowest of all possible grounds. On all important points of constitutional principle, limited-government conservatism prevailed, and liberal arguments for expansive interpretation of federal power lost. In the long run, that will matter more than the fact that the healthcare bill survived. Chief Justice Roberts succeeded in doing the seemingly impossible: upholding the limited nature of federal enumerated powers and, at the same time, avoiding any possible accusation of judicial overreach. Through his deferential ruling on the taxing power, the chief justice made clear that he had no interest in interfering with congressional powers or in scoring points against the administration. The court’s interpretations of the Commerce and Spending powers are matters of constitutional principle, not political tactic.

The chief justice is taking the long view. What matters most for the American Republic is not the fate of this statute or the outcome of that case, but the long-term struggle over the meaning of the Constitution. Roberts’s deft opinion in the healthcare case strikes a mighty blow for conservative constitutionalism, while bolstering the court’s moral authority and reminding the country of the difference between law and politics. In the second paragraph of his lengthy opinion, Roberts writes that “[r]esolving this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.” His masterful opinion succeeded – to the surprise of virtually everyone – in respecting and reinforcing both of those limits. Conservatives may be upset now, but over time they will come to appreciate that they gained far more than they lost from this decision.

PHOTO: Religious leaders lie on the ground and pray over a Bible and a copy of the verdict on President Barack Obama’s signature healthcare overhaul law outside the Supreme Court in Washington, June 28, 2012. REUTERS/Jason Reed

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Roberts Rules Supreme

Am I the only one who sees
The forest thru the trees
Roberts’ rules the elected chaotic
Rewriting congress for being myopic
Altruistic is his play
Turn the tables and let them flay
Set them up with defeat
Then lose their mouths to find their feet
The elected lose when they claim this win
2010 Tea Party, was a way to begin
Now the focus is crystal clear
There is one party whose end is near
What other outcome could be more esthetic
Than to enable the voter and not the pathetic

Posted by resaci | Report as abusive

Affordable Care Act is Law
The sticking point of “mandated” health care is now moot, regardless of what argument was used. I thought the Constitution had a phrase, “promote the general welfare.” My very personal take is that government-mandated investment and required behavior has continued to benefit Americans in a big way, even when they don’t like it: Helmets for motorcyclists; car insurance for drivers, all mandated. SEATBELTS are a personal, individual mandate on both carmakers and vehicle drivers and passengers. Without seatbelts, my entire family would be dead. An 82-year-old woman SUV driver crossed 4 lanes of traffice to hit them head-on. She hurt her wrist. My son had a dislocated shoulder; younger granddaughter had cuts and bruises; older granddaughter had an ugly broken leg; daughter-in-law had internal injuries, 2 surgeries, coded twice and 2 months in ICU. They are Alive because of the seatbelt mandate. We still need to get to healthcare for all with no middlemen. We’ll keep working on that. The Lifeflight, ambulance and hospital charges were over a million dollars for this one family.

Posted by edifer | Report as abusive

Now, since the Supreme Court has decided it’s Constitutional and a tax, how are they going to assure the tax money collected will only be spent on “healthcare”? No funding for lobbiests, junkets to far away conferences a la GSA, etc.? Only spent on HEALTHCARE! Have fun with that one!

Posted by JustThinking2 | Report as abusive

The health legislation correctly surmises that not one of us will likely enter, and then leave life, without an encounter with the for-profit health system. If all could be counted on to keep a portion of their income – against making a token payment when emergency services are rendered – than this payment would be seen as neither a tax nor a penalty. That which the SC has labeled a ‘tax’ is in truth a subsidized token fee for services not yet rendered – and in a more fanciful light, could have been offered back to the payer (with interest) at retirement – in the extraordinary event it was unused. The obvious alternative is being barred from care without your wallet

Posted by auger | Report as abusive

Does the statement “healthcare mandate was a tax on young healthy people who chose not to buy health insurance at rates to subsidize their elders” sound anthing like the Medicare program that has been in effect for almost fifty years now, and expanded significantly by last Republican administration, to the learned law professor? If Congress can’t tax population to provide basic services for the citizenry, then explain Medicare, Medicaid, and Social Security. But then me thinks that is entirely the point. Hypocritical hystrionics by the spoiled and entitled and declining elite who believe only oil companies and food conglomerates deserve to be supported by the public coffers.

Posted by sylvan | Report as abusive

when obama is reelected and scalia keels over, his lips foaming uttering diatribes against obama, this rulling will be meaningless. it will be a delicious irony if obama appoints his successor. like justice william o. douglas in his last days, scalia is losing it.

Posted by brandonhstubbs | Report as abusive

Much to my shock and amazement, my take on the decision was much the same as Mr. McConnell’s. My opinion of Justice Roberts has improved. I have long thought that the interstate commerce clause has been badly abused since the ’30s. My opinion has always been that the CC gave the Feds the power to regulate actual interstate commerce, not the power to regulate activities within a state just because the fruits of those activities might ultimately cross state lines. Further, ever since Ronny baby started pulling stunts like make your drinking age 21 or I cut off your highway funds, I’ve described those sorts of behavior as extortion. Apparently, Justice Roberts agrees with me.

Posted by majkmushrm | Report as abusive

There’s something creepy about that photo of the two men praying over the court’s judgement. I presume they’re trying to convince their “god” to change it?

Posted by RobinInSanDiego | Report as abusive

I have heard this ruling described elsewhere as a masterful stroke of legislation that harkens back to Madison v. Marbury. Unfortunately, in the raging screamathons that our national elections have become, none of this reflective nuance will matter one whit.

To the people who get their news 140 characters at a time (read: the majority of people), Obama won, conservatives lost.

Posted by smanchwhich | Report as abusive

The tax will be repealed and four more years wasted with no improvement in the health care system. We need to find common ground or only the very rich will have doctors

Posted by whyknot | Report as abusive

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