Chief Justice Roberts’s opinion held that the minimum coverage provision falls within Congress’s power to impose a tax, and thus is constitutional. At the same time, he concluded that the mandate exceeded Congress’s power to regulate interstate commerce. Moreover, he (along with two Democratic appointees, Justices Breyer and Kagan) also held that the Act’s dramatic expansion of the Medicaid program is unconstitutional insofar as it jeopardizes the states’ preexisting Medicaid dollars. In short, the Chief Justice upheld the entirety of the ACA, but with some important caveats.
The end product was—not to put too fine a point on it—brilliant.
It is brilliant act of judicial statesmanship in a way that parallels another landmark decision, Marbruy v. Madison.
Marbury is best known for its statement in defense of judicial review, the authority of the Court to declare acts of Congress (and the executive branch) unconstitutional. But to really understand Marbury, one has to place the Great Chief Justice's decision in its political context. In February of 1803, Chief Justice Marshall knew that the Jefferson administration would have completely ignored the Court’s decision in Marbury had the justices ordered Madison to grant Marbury his judicial commission. (Indeed, the administration did not even dignify the proceedings by appearing. Only one side argued at the Court.) Thus, Marshall reached the Court's conclusions—that the Jefferson administration had acted unlawfully, and that the Court had the authority to say so—while ultimately holding that the Court lacked jurisdiction, forcing it to dismiss the case. Marshall asserted the Court's authority in a muscular fashion, delineating the constitutional constraints on Congress and the President, but without actually challenging the other branches' powers. Marshall set down important constitutional markers while reaching an immediate result that favored the incumbent President, shielding the Court from any significant political danger or threat of retribution.
Marbury is best known for its statement in defense of judicial review, the authority of the Court to declare acts of Congress (and the executive branch) unconstitutional. But to really understand Marbury, one has to place the Great Chief Justice's decision in its political context. In February of 1803, Chief Justice Marshall knew that the Jefferson administration would have completely ignored the Court’s decision in Marbury had the justices ordered Madison to grant Marbury his judicial commission. (Indeed, the administration did not even dignify the proceedings by appearing. Only one side argued at the Court.) Thus, Marshall reached the Court's conclusions—that the Jefferson administration had acted unlawfully, and that the Court had the authority to say so—while ultimately holding that the Court lacked jurisdiction, forcing it to dismiss the case. Marshall asserted the Court's authority in a muscular fashion, delineating the constitutional constraints on Congress and the President, but without actually challenging the other branches' powers. Marshall set down important constitutional markers while reaching an immediate result that favored the incumbent President, shielding the Court from any significant political danger or threat of retribution.
In the Health Care
Cases, the immediate danger to the Court was not so grave or immediate. There was no
chance that the President would simply ignore or disobey the Court’s judgment. Indeed, a sizable majority of Americans would have supported the conclusion that the individual mandate was unconstitutional.
Yet there was a real longer-term danger to the Court: it risked staining itself with the appearance of partisanship. This risk was especially acute given some other recent decisions (most prominently, Bush v. Gore and Citizens United) and some others headed the Court's way (such as those involving the constitutionality of affirmative action and the Voting Rights Act). A steady string of 5-4 decisions on a range of controversial issues, cleaving perfectly along partisan lines, would present a real threat to the Court's diffuse support--support that depends on the public's faith that the Court stands above partisan politics, that it renders its decisions based on legal and constitutional principles.
The Chief Justice’s opinion today can rightly claim the mantle of bipartisanship and judicial modesty, and in this highest of high-profile cases. "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions." The Chief's paens to the limited role of the judiciary in our constitutional framework, stated eloquently during his Senate confirmation hearings, suddenly ring much more true.
Further, the opinion's power to lift the Court above the polarized, partisan fray is apt to prove enormously valuable to its long-term institutional standing. Today's decision largely immunizes the Court, at least for some time, from Democratic attacks that the five Republican appointees are "conservative judicial activists," partisan hacks in judicial robes. If the Court declares that all governmental affirmative action programs violate the Equal Protection Clause next spring in Fisher, for instance, liberals will have a much harder time making the predictable accusations of partisanship stick. Today's Case of the Century will stand as a salient counter-example.
At the same time, the Chief Justice established some important, conservative doctrinal beachheads. Specifically, he reaffirmed or established (depending on your perspective) some potentially important limits on Congress’s powers under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause. In fine, Congress cannot use the Commerce Clause to regulate commerce in a manner that compels people into commerce; it can only regulate existing commerce. Further, such regulation, even if "necessary," can never be "proper," no matter its importance to a broader regulatory scheme. And the General Welfare Clause does not permit Congress to use the states' dependence on an existing conditional spending program as a means to forcing them to accept significant, qualitative changes to that program; rather, states must be given the choice to accept or deny the funds associated only with the program's modifications--at least when the program is huge like Medicaid.
We can debate the significance of these limits. And whatever we think today, what will really matter is how future Court majorities interpret today’s opinion. But regardless, the Chief Justice stated clearly that the Obama administration's principal defense of the Act--as a regulation of interstate commerce--amounted to a regulatory overreach. He embraced the essence of the conservative constitutional argument--that Congress cannot uses its commerce power to regulate "inactivity." And in wrapping the Court in bipartisanship, he has made it much more difficult for liberals to attack the Court's conservative decisions going forward.
Further, it is important to keep in mind an important difference in these controversies. Today's decision merely held that the ACA is permissible; a Republican Congress and President could repeal the Act in toto in January. By contrast, decisions like Citizens United--or potential decisions declaring affirmative action or Section 5 of the Voting Rights Act unconstitutional--could only be undone via constitutional amendment (or a subsequent overruling).
Liberals should be extremely excited by today's decision. The bottom line is that the most significant piece of social welfare legislation since the 1960s survived the exacting review of a conservative Supreme Court. As a matter of policy, in an age of growing economic inequality, the Court has validated the biggest effort at redistribution since the end of the Great Society. But liberals should not forget that, in the long run, it was the views of the Federalists--and Chief Justice Marshall in particular--that ultimately shaped the Nation. By cultivating the Supreme Court's institutional legitimacy, Marshall was able to pursue his nationalist visions, even while conceding momentary defeats to the Jeffersonians. Marshall saw that, as the Court's prestige grew, so, too, did the influence of the Chief Justice over the growing Nation.
Today's real winner was the Court--and by extension the Chief Justice. It was a stroke of judicial genius. A Marbury for our time.
Yet there was a real longer-term danger to the Court: it risked staining itself with the appearance of partisanship. This risk was especially acute given some other recent decisions (most prominently, Bush v. Gore and Citizens United) and some others headed the Court's way (such as those involving the constitutionality of affirmative action and the Voting Rights Act). A steady string of 5-4 decisions on a range of controversial issues, cleaving perfectly along partisan lines, would present a real threat to the Court's diffuse support--support that depends on the public's faith that the Court stands above partisan politics, that it renders its decisions based on legal and constitutional principles.
The Chief Justice’s opinion today can rightly claim the mantle of bipartisanship and judicial modesty, and in this highest of high-profile cases. "We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions." The Chief's paens to the limited role of the judiciary in our constitutional framework, stated eloquently during his Senate confirmation hearings, suddenly ring much more true.
Further, the opinion's power to lift the Court above the polarized, partisan fray is apt to prove enormously valuable to its long-term institutional standing. Today's decision largely immunizes the Court, at least for some time, from Democratic attacks that the five Republican appointees are "conservative judicial activists," partisan hacks in judicial robes. If the Court declares that all governmental affirmative action programs violate the Equal Protection Clause next spring in Fisher, for instance, liberals will have a much harder time making the predictable accusations of partisanship stick. Today's Case of the Century will stand as a salient counter-example.
At the same time, the Chief Justice established some important, conservative doctrinal beachheads. Specifically, he reaffirmed or established (depending on your perspective) some potentially important limits on Congress’s powers under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause. In fine, Congress cannot use the Commerce Clause to regulate commerce in a manner that compels people into commerce; it can only regulate existing commerce. Further, such regulation, even if "necessary," can never be "proper," no matter its importance to a broader regulatory scheme. And the General Welfare Clause does not permit Congress to use the states' dependence on an existing conditional spending program as a means to forcing them to accept significant, qualitative changes to that program; rather, states must be given the choice to accept or deny the funds associated only with the program's modifications--at least when the program is huge like Medicaid.
We can debate the significance of these limits. And whatever we think today, what will really matter is how future Court majorities interpret today’s opinion. But regardless, the Chief Justice stated clearly that the Obama administration's principal defense of the Act--as a regulation of interstate commerce--amounted to a regulatory overreach. He embraced the essence of the conservative constitutional argument--that Congress cannot uses its commerce power to regulate "inactivity." And in wrapping the Court in bipartisanship, he has made it much more difficult for liberals to attack the Court's conservative decisions going forward.
Further, it is important to keep in mind an important difference in these controversies. Today's decision merely held that the ACA is permissible; a Republican Congress and President could repeal the Act in toto in January. By contrast, decisions like Citizens United--or potential decisions declaring affirmative action or Section 5 of the Voting Rights Act unconstitutional--could only be undone via constitutional amendment (or a subsequent overruling).
Liberals should be extremely excited by today's decision. The bottom line is that the most significant piece of social welfare legislation since the 1960s survived the exacting review of a conservative Supreme Court. As a matter of policy, in an age of growing economic inequality, the Court has validated the biggest effort at redistribution since the end of the Great Society. But liberals should not forget that, in the long run, it was the views of the Federalists--and Chief Justice Marshall in particular--that ultimately shaped the Nation. By cultivating the Supreme Court's institutional legitimacy, Marshall was able to pursue his nationalist visions, even while conceding momentary defeats to the Jeffersonians. Marshall saw that, as the Court's prestige grew, so, too, did the influence of the Chief Justice over the growing Nation.
Today's real winner was the Court--and by extension the Chief Justice. It was a stroke of judicial genius. A Marbury for our time.
