Justice Roberts is Playing a Long Game

Time now to tabulate the damage done by yesterday’s Supreme Court ruling in  National Federation of Independent Business et al. vs Sebelius, Secretary of Health and Human Services et al. While Justice Roberts has made himself look extremely distinguished, statesmanlike, non-partisan, and touchingly concerned about his place in posterity, an appraisal that I’m sure he was soaking up yesterday, he might be playing a long game, gutting the Commerce Clause as  a ‘fundamental lever of constitutional power for the left’–from Corey Robin, who I’m sure will hand out some contrarian commentary on this ruling pretty soon–, redefining  the relationship between Federal government and State administrations, and further problematizing the notion of judicial restraint. (I realize that Justice Roberts is only one of five who signed on to the majority ruling, but I suspect he had a great deal to do with its crafting.)

My unease was sparked by the first few comments I read on the SCOTUS live blog yesterday:

[T]he entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.

A reminder. Part of the majority opinion reads:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. 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.” (p. 55)

This is an interesting claim to make, for as Neal Katyal notes,

[U]ntil now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time.

And in striking down the individual mandate under the commerce clause, especially by relying on the specious distinction between activity and inactivity in the healthcare market, the ruling is even more problematic.  (Pages 16-27 of the ruling are worth reading in their entirety.)

These aspects of the ruling have now been adequately commented on. Indeed, those opposed to the ACA see it as a strategic victory, one likely to have long-term repercussions, an especially significant factor given the long-term conservative bent this Court is likely to have. Randy Barnett, for instance, notes that,

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: the federal government is one of limited and enumerated powers. It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power  “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”  Then the Court went farther to invalidate the withholding of existing Medicaid funding as coercive, thereby finding an enforceable limit on the Spending Power.

Lastly, and even more interestingly, the court reasoned its way to its conclusions in a way that is sure to raise questions about judicial restraint. Katyal again:

The court had to rewrite the statute to save it from a constitutional problem by eliminating the part of the law that permitted the federal government to withdraw Medicaid financing. The result, as Justice Anthony M. Kennedy warned, was effectively to leave in place a statute that Congress never enacted….[Thus] courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference.

The Supreme Court’s reliance on this ruling in other cases that require the relationship between the Center and states to be clarified will soon make clear what its true significance really is.