In some of the best-known lines in constitutional law, Chief Justice John Marshall declared that it is…
“emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”
Now that we have the U.S. Supreme Court’s decision on the Affordable Care Act (ACA), it is current Chief Justice John Roberts who has set his stamp on the court and his legacy as the leader of the judicial branch of our government.
But in doing so, when one reads the opinions in National Federation of Independent Business v. Sebelius, Roberts appears to be seeking a compromise of his own, but ultimately failed to make either side constitutionally happy.
In reading Robert’s nearly 60-page opinion, he lays out a surprising route towards upholding the ACA that took most commentators and scholars by surprise.
The main challenge against the ACA was that it violated the Commerce Clause of the U.S. Constitution, which grants Congress the power to “regulate commerce with foreign nations, and among the several states” (Article I, Section 8).
Since the New Deal and the revolution in government intervention in the economy, the High Court has generally deferred — but not always — to the use of interstate commerce as a way for the government to interact with the private sector.
For example, in what many thought would be a key case from the New Deal era, a farmer sued the government over a penalty for growing too much wheat, which he claimed he would use for only himself. The Court, however, took the side of the government to declare that if he had used his own wheat, he would not have bought the wheat on the open market, and thus affected interstate commerce.
Another notable decision upholding the government’s interstate commerce power was during the modern civil rights movement. A Georgia barbeque restaurant challenged its right to serve only white customers. The court held that while most of the customers may have been local, the food served to the customers came across state lines, thus allowing the federal government to regulate.
A few recent cases — most notably on the issue of preventing guns in schools and making domestic violence against women a federal crime — restricted the federal government’s role in economic regulation.
And in the health care reform case, Chief Justice Roberts refuses to use the interstate commerce power to allow Congressional interaction, due to the fact that the core aspect of the law — the individual mandate — “does not regulate existing commercial activity.”
To allow Congress such power as to “regulate individuals precisely because they are doing nothing would open a new and potentially vast domain” of governmental power, something that neither Roberts nor other conservative justices would allow.
Roberts goes on to say that 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.” One would think that the full law would be struck down and the conservatives would be rejoicing, but then Roberts takes a different direction.
Roberts, joined by the liberals, instead uses Congress’ power to “lay and collect taxes, duties, imposts and excises” as a way to “encourage buying something,” such as purchasing homes and professional education.
The rationale behind the “tax” is that it “leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”
While Roberts received the votes of the four liberal justices, Justice Ruth Bader Ginsburg’s opinion appears more like a stinging dissent to the Chief rather than one in which she and her colleagues joined in upholding the law.
Ginsburg argued that the Commerce Clause did allow for Congress to regulate consumers’ behavior, and takes after Roberts for his “novel constraint” on the commerce power — even going as far as saying his argument had “multiple flaws,” “difficult to fathom,” his “analogy is inapt,” “accepts just such specious logic,” and “disserves future courts.”
She sums up her displeasure with the following:
“Why should THE CHIEF JUSTICE (all caps in original) strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy? I find no satisfying response to that question in his opinion.”
With friends like Ginsburg, I’m surprised that Roberts could have gotten the majority on the decision.
But in reading the dissenting joint opinion, signed by the three regular conservatives and the justice who is the typical swing vote — Kennedy — they proceed to blast the majority (i.e., the Chief’s) opinion:
“If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.’”
The four dissenting justices then go to blast Justice Ginsburg’s arguments, most notably the principle that the Constitution outlines “not federally soluble problems, but federally available powers. … None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power.”
They also make not-so-suitable swipes at the end of their opinion, presumably against the chief justice: “The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them.”
They go on to declare that:
“In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.”
In the end of their opinion, they lay a broadside principled attack on the decision:
“The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”
Many commentators have posited that this decision was a 5-4 one, but the way that I read it, is more like a 4-1-4 decision, with the liberals reluctantly joining Robert’s decision in order to uphold the ACA.
In fact, some reports are now surfacing that Roberts changed his mind and the course of the decision by voting to uphold the ACA as constitutional, in his own approach.
This would seem to fit with the style and writing of both Ginsburg’s and the conservatives’ opinions. In fact, I would not be surprised if Ginsburg’s opinion was originally a dissent and the conservatives’ opinion was the initial majority opinion.
This embittered decision shouldn’t, though, come to any surprise, because as many scholars have noted, the Supreme Court does tend to mirror the nation’s opinion. One day after the Court released its landmark ruling, Gallup Poll released a poll indicating a split of 46-46 in approving or disapproving of the Court’s decision.
Among the partisans, 79 percent of Democrats agreed with the decision, while 83 percent of Republicans disagreed, and independents split 45 percent agree to 42 percent disagreeing.
With the level of political polarization in the two elected branches of government, should we have been surprised when those in the judicial robes were so divided as well?