Now that the healthcare ruling has been completely
digested by political officials, legal scholars, and the news, it seems clear
that despite the remarkable achievement of the Affordable Care Act, there will
be some significant hurdles over the course of the next couple years as the
nation gets ready to implement the plan by 2014. I just received my official copy of the
slip opinion of the Court’s decisions and after reading it again, I am still
positively amazed by the legal logic used by Chief Justice Robert’s logic. Today I’d like to take time to discuss the
political implications of the Majority’s ruling, specifically Roberts’ opinion,
and also discuss the attempts to politicize and predict what the 5-4 ruling means
for future decisions by the Supreme Court.
Let’s start with the easiest part of the decision: the
individual mandate as it relates to the Commerce Clause. What is certainly clear is that there are
five votes in the present makeup of the Supreme Court to ensure that the
Commerce Clause cannot be used to force individuals to purchase a product. The arc of the Commerce Clause is
understandably broad. Combined with the
Necessary and Proper clause, the Commerce Clause has been used, since Wickard v. Filburn to enforce drug
regulations, price controls, and racial policies aimed at places of public
accommodation. In Katzenbach v. McClung the Supreme Court noted that interstate
commerce involves the ability for interstate travelers to partake in
establishments designed to accommodate travelers. Thus, the Commerce Clause was appropriately
applied to allow regulations that forced restaurant owners and hotel owners to
permit African Americans to enter these establishments.
What has changed in the Commerce Clause analysis is the
willingness of the Supreme Court to intervene in Congressional affairs as it
relates to the clause. In cases like Wickard, McClung, and U.S. v. Darby
the Supreme Court gave Congress much deference noting that when Congress makes
significant findings and has a rational basis for the regulatory scheme to
protect commerce, judicial intervention is at an end. McClung. However, the most recent ruling makes it
clear, that even despite a rational basis, the Supreme Court is now more willing
to determine if other principles, namely the Tenth Amendment, and the original
construction of the Commerce Clause, limits Congress’ ability to exercise the
Commerce Clause power.
The more difficult and politically important issue is the
Chief Justice’s interpretation of the tax power. I believe that Justice Roberts is absolutely
right that the tax power, as a matter of constitutional interpretation, was
properly exercised in the ACA.
Politically however, this is a double edged sword. The current political quandry is whether President
Obama “lied” when he said that the ACA was not a tax on the American
public. This is an abstraction. Justice Roberts’ decision makes it clear
that, if Congress is to pass similar legislation, it must openly declare that
such legislation involves taxation.
The real political and practical issue, then, is how can
Congress pass similar legislation if it must label the policy a tax? Taxing anything in this country is anathema
in politics. Congress faces a fiscal
cliff where if the government cannot make up trillions of dollars through taxes
or budget cuts the government will enact sweeping cuts across the board. The very reason why government is gridlocked
into inaction, despite the grave consequences for such inaction, is because the
nature of government spending, and whether taxes are a viable solution to the
government’s fiscal woes. My prediction for the ramifications of Justice
Roberts’ opinion is that Congress, in order to solve big problems in the
country, will have to rely on the tax powers and deal with the resultant
political backlash for doing so because the Commerce Clause will not be a
sufficient font of power to overcome other constitutional concerns. In the face of diminishing Commerce Clause
power, Congress will have to rely on the more politically dangerous Tax
power. It was really difficult to pass
the ACA when everyone thought that it was a valid exercise of the Commerce
Power. Given the current political
climate, it seems that any policy that must rely on the tax power is likely to
fail in Congress.
Another result of the ACA which is not political, but has
been politicized, is Chief Justice Roberts’ switch from siding with Kennedy and
conservatives in the dissent, to the liberal wing of the court in this
decision. Rumors had spread early when
the decision was announced that back door politics had resulted in the Chief
Justice switching his vote from striking down the ACA to upholding it. Although conspiracy theories abound, it is
not unheard of for justices, whatever their reasons, to switch sides in the
middle of deliberations. We now know
that Roberts did in fact switch his vote from originally striking down the ACA
to sustaining the act under the tax powers.
Depending on the political paradigm of the speaker many
in the press and in politics have either lambasted Roberts as a traitor or
warmly embraced him into their fold.
Some have mused that perhaps Roberts is becoming a new moderate liberal
on the court, willing to trade in his prior conservative credentials. This is a foolish belief. The Chief Justice likely has not shifted his
legal ideology away from what it already is; a conservative jurist with an eye
for adhering to well established constitutional principles for statutory and
constitutional interpretation. There are
some important cases being decided next term and to rely on Justice Roberts as
a new found moderate would be a strategic and logical error. Rather than attempting to understand the
Supreme Court, and its justices, in terms of political victories, like the
press seems eager to do, think of the Justices as having their own methodology
of legal interpretation, unconnected to our general political understandings.
