In a nutshell, Chief Justice Roberts used his opinion to draw a line in the sand on the limits of Congress’ powers under the Commerce Clause and Necessary and Proper Clause, and on where the states have police powers not shared by the federal government.
Nevertheless, say the critics of the Supreme Court’s decision, the Commerce Clause discussion is all theoretical. Chief Justice Roberts still ended up in the wrong place when he found another basis on which to uphold the mandate through the back door of Congress’ taxing authority. The liberal justices reserved their opposition to Chief Justice Roberts’ reasoning on the limits of the Commerce Clause but were happy to jump aboard the Chief Justice’s holding that the individual mandate was nevertheless constitutional by whatever means he took to reach that conclusion.
Disturbingly, Roberts bought the government’s argument that the individual mandate could be viewed as simply imposing a tax on those who do not buy the product that Congress commanded them to purchase. This argument stretches logic beyond any reasonable bounds and ignores the expressed intent of Congress in making clear that its “penalty” for not purchasing health insurance was not a tax.
While finding the “penalty” label fatal to the application of the Anti-Injunction Act that would have prevented the lawsuit from even being heard in the first place at this time if it were deemed a tax for the purposes of this Act, Justice Roberts decided that for constitutional purposes it was indeed a tax after all. The notion is that if someone chooses to pay the IRS the penalty rather than obtain health insurance, they have fully complied with the law. This “suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance,” Roberts wrote.
The intent of Congress, as reflected by the language it used to describe the payment and contemporaneous statements denying that it was a tax, apparently does not matter. Moreover, even though the Chief Justice’s opinion held that Congress did not have the authority under the Commerce Clause to mandate that individuals purchase health insurance, he concluded that Congress nevertheless had the authority to tax individuals for specifically declining to do what Congress had mandated, even though Congress had no authority to impose that mandate in the first place. This simply makes no sense. Chief Justice Roberts went off the rails here to reach the result he wanted to reach and thereby avoid a major blowback against the SupremeCourt’s legitimacy if it had overturned Obamacare.
Roberts got back on track when dealing with the issue of the expansion of Medicaid payments to subsidize health care insurance for those who cannot afford it. Congress may attach appropriate conditions to federal taxing and spending programs to preserve its control over the use of federal funds given to the states, as it has done in the past with respect to Medicaid. The federal government contributes money to the states to pay the lion’s share of Medicaid costs on condition that the states put in some of their own money. The states are free to accept those conditions or not at the time they are imposed. However, in this case, instead of simply refusing to grant the new funds earmarked for Obamacare subsidies to states that will not accept the new conditions requiring additional contributions from the states’ budgets, Congress has also threatened to withhold those states’ existing Medicaid funds for programs that pre-existed Obamacare. This crosses the line from financial incentives to contribute to the costs of a federal program to coercive pressure on the states to take on new burdens or lose everything that they had previously received.
“When, for example, such conditions take the form of threats to terminate other significant independent grants,” Chief Justice Roberts wrote, “the conditions are properly viewed as a means of pressuring the States to accept policy changes.” He called such pressure “a gun to the head.”
If states do not want to accept the additional financial burdens in contributing to the expansion of the categories of people eligible for assistance as a result of Medicare, Congress is free to deny those states the extra federal funds made available for that expansion. “What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”
The conventional wisdom was that Justice Kennedy would be the swing vote in a 5-4 decision and that the individual mandate at minimum would be struck down. The conventional wisdom was wrong. Justice Kennedy voted with the conservative minority in this case. Chief Justice Roberts turned out to be the swing vote, siding with the four liberal Justices to uphold Obamacare even if his reasoning did not fully track with theirs.
What motivated Chief Justice Roberts to become the fifth “liberal” vote in this case? It may seem counterintuitive, but it may have very well been Chief Justice Roberts’ innate conservatism that led him to his surprise decision in this case.
Justice Roberts is most concerned with preserving the legitimacy of the Supreme Court as a co-equal branch of the federal government. In order to do that, he may have felt it necessary to demonstrate that in a case as fraught with partisan controversy as the constitutional challenge to Obamacare, the Court could render a reasoned decision without being driven primarily by ideological bias. References to judicial restraint, Court precedents, deference to the will of Congress and examining every reasonable construction of a statute in order to save a statute from unconstitutionality are sprinkled throughout his opinion.
At the same time, Justice Roberts set down markers on the limits of congressional authority under the Commerce Clause and on federalism principles that are now part of one of the most important Supreme Court decisions in decades. They are incorporated into the body of precedents that the Supreme Court in the future will be expected to pay attention to.
Moreover, by holding that the penalty for non-compliance with the Obamacare individual mandate is a tax, Justice Roberts has managed to frame Obamacare as a tax-and-spend program that will play to the Republicans’ strengths in the upcoming presidential and congressional campaigns. If that label sticks in voters’ minds and makes Obamacare even more unpopular than it already is, its days may be numbered irrespective of what the Supreme Court decided.
In sum, Chief Justice Roberts arguably followed a circuitous route to reach the wrong result with regard to the constitutionality of the Obamacare individual mandate. However, whether or not the political process eventually sweeps Obamacare away, the limitations on the Commerce Clause that Chief Justice Roberts used his opinion to clearly articulate will endure and may serve as a brake on future progressive initiatives that go too far.
Freedom Center pamphlets now available on Kindle: Click here.
Pages: 1 2