Healthcare and the Supreme Court – Losing the Legal Forest for the Political Trees

“But Obama won!” you may reply.  Indeed, the Affordable Care Act is constitutional as a tax.  President Obama’s signature policy achievement is intact, and he has won a significant political victory.  But Chief Justice Roberts wasn’t and isn’t concerned with policy or presidential politics.  He was and is concerned with the course of American Constitutional law.  And on that front, NFIB v. Sebelius represents an unqualified conservative triumph.  Liberals and Democrats may be happy now, but give it a decade; conservatives and Republicans will come to realize that they won this one.  In a big way.

Some have said that Roberts joined the four “liberal” justices on the Court to defend his credibility.  This is probably true.  But the recent news that Roberts switched his vote at the last minute – that he may indeed have written what became the dissent before changing his mind – proves that public perception was never enough reason for him.  Roberts was prepared to let the Court look like a panel of partisan political hacks on his way to gutting the centerpiece of the President’s first-term agenda.  But brilliant legal tactician that he is, Roberts saw in the individual mandate an opportunity to remake Constitutional law while still protecting the Court from criticism.  And he took it.

If you’ll forgive the legalese, the federal tax power was only part of the story.  The individual mandate decision in NFIB v. Sebelius really turned on the commerce clause, which grants Congress the power to regulate commerce among the several states.  Until NFIB v. Sebelius, the mainstream legal consensus was that the ACA obviously fell under this power.  Even conservatives agreed: the Court of Appeals for the D.C. Circuit, one of the more conservative federal appellate courts in the country, actually upheld the ACA under the commerce clause.  The argument was essentially this: failure to buy health insurance is an economic decision.  To self-insure – to save money for a healthcare emergency instead of buying insurance – is the same as getting an Aetna card.  And there’s really no difference between self-insuring with no money and self-insuring with $10,000 in your savings account.  Or so the argument went.

But the conservative legal fringe never bought this.  And by the time the case reached Roberts and the Court, insurance stopped being like savings accounts and started being like broccoli.  So “inactivity” became the watchword, and five Justices – including Roberts – held that “the power to regulate assumes there is already something to be regulated.”

This is new.  The famous “wheat case” – Wickard v. Filburn – held that a person who grew wheat for his own consumption – who never bought or sold anything – was part of interstate commerce because, in aggregate, a million people growing their own wheat and taking themselves out of the wheat market would have a substantial effect on interstate wheat-commerce.  Wickard v. Filburn has held up for seventy years, but the ACA has poked a major hole in that doctrine.  Now, federal laws regulating aggregate economic inaction are unconstitutional.

This is huge.  A clever lawyer could take any major commerce clause decision of the last seventy years and reclassify the economic “action” described as inaction.  U.S. v. Heart of Atlanta Motel, which upheld the public accommodations provision of the Civil Rights Act, forces the owners of nominally open businesses to engage in commerce with everybody who walks through their doors regardless of their race.  Sure, they’re engaging in commerce by opening their shops, but racist entrepreneurs could readily make the case under NFIB v. Sebelius that Congress can’t regulate their refusal to engage in commerce with black people.  Gonzalez v. Raich, which upheld federal drug laws as they applied to marijuana grown for in-state use only, turned on whether inaction with respect to the interstate drug market could be regulated.  Both of these cases held that the commerce clause covered these examples of “inactivity.”  Both these cases upheld the commerce power in those contexts.  But the ACA is not constitutional.  What’s changed?  Nothing.  Except now John Roberts is the new Chief Justice, and conservative justices outnumber “liberals” five-to-four.

The commerce clause has formed the basis of a tremendous amount of progressive legislation in the last seventy years, and a broad view of federal power has always been a part of federalist jurisprudence, dating all the way back to Alexander Hamilton, John Adams, and John Marshall.  On June 28, 2012, the Chief Justice dealt that movement – and the modern liberal worldview – a huge blow.  The next time the federal government wants to pass a commerce clause bill, they’ll have to get past a Supreme Court argument from the U.S. Chamber of Commerce or the Attorney General of Texas that says that the new law regulates inactivity.  And five of the justices on the bench will be all ears.