Another Thought or Two about the Obamacare Decision

In the preceding post, I alluded to commentators who found silver linings in Chief Justice Roberts’s alignment with the Court’s liberal wing in upholding the individual mandate. I feel compelled to say more about the supposed silver linings.

I begin with Ilya Somin, writing at The Volokh Conspiracy:

Although the Supreme Court upheld the individual mandate as an exercise of the Tax Power, a majority of the justices also ruled that it is not a legitimate exercise of Congress’ powers under the Commerce Clause. In doing so, they endorsed the plaintiffs’ argument that the individual mandate exceeds the scope of the Commerce power because it does not regulate “economic activity,” but instead targets inactivity.

But, as Somin points out:

The problem is that Roberts then proceeds to “empower Congress to make those decisions [to buy health insurance]” for us under the guise of imposing taxes.

Why did Roberts not simply join the four dissenting justices and throw out Obamacare while making clear the limits on Congress’s Commerce Clause power? The same (hypothetical) majority opinion also would have found unconstitutional the feds’ expansion of Medicaid.

Sean Trende, writing at RealClearPolitics, has much to say in Roberts’s defense, including this:

Thursday’s health care ruling shocked most observers. It upheld the health care law as constitutional. But rather than find that the law was justified under Congress’ authority to regulate commerce, it instead found it was justified only under Congress’ power to tax. It also imposed limits upon Congress’ ability to condition spending grants to the states upon those states taking certain steps. To my knowledge, former Solicitor General Walter Dellinger was the only person who thought that the court would ultimately rule on those grounds. I certainly was surprised.

Even more surprising, the decision was 5-4, and Chief Justice John Roberts authored the majority opinion upholding the law, rather than Anthony Kennedy. Conservatives are flabbergasted by the chief’s decision (or, in their view, betrayal)….

But I think if you scratch the surface here, Roberts embarked upon a gambit much like [Chief Justice John] Marshall did 200 years ago [in Marbury v. Madison]

Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented….

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it….

And the decision may help to ensure a GOP sweep in November by energizing unenthusiastic conservatives and fiscally prudent independents.

Trende continues:

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers….

The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote….

Roberts has basically … [i]nsulate[d] the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long.

This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.

Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act.

I don’t think invalidating the ACA would have affected the court’s legitimacy that much, at least outside of liberals in the legal academy. But taken as a whole, this series of decisions really might have irrevocably hurt the court’s reputation for independence.

But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues….

Yes, but Roberts and his conservative brethren have life tenure, and what the public thinks about the Court surely is less important that what the Court does. Giving ground to seem “nice” is a classic conservative blunder.

Perhaps I can find solace in a column by Tom Socca, writing at Slate:

There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered….

The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.

Roberts was smarter than that. By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well)….

This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Today, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

This strikes me as more of the same. But perhaps Trende and Socca are on to something. Roberts, by reaching out the the Court’s left, may have gained useful allies for future fights. Kennedy, despite his surprising (to me) absolute opposition to Obamacare, can and will stray off the conservative reservation without warning.

There is also the important and still-to-be-decided issue of Obamacare’s effects on religious freedom. This is from a post by Sarah Marshall and Jennifer Torre at The Foundry:

…The Court’s ruling to uphold Obamacare doesn’t mean the law has cleared its legal challenges, however. Twenty-three federal lawsuits against Obamacare’s Health and Human Services (HHS) mandate—which goes into effect on August 1—now take on added urgency….

The HHS anti-conscience mandate is a completely separate rule from the individual mandate, and its constitutionality was not considered by the Supreme Court in the cases decided today. The HHS mandate, along with the individual mandate and the rest of Obamacare, still presents a clear threat to individual and religious liberty. Nothing short of full repeal of the statute will adequately protect our freedoms from this federal overreach.

The next legal battleground against Obamacare resides in the fight to protect employers from the coercive requirement to provide coverage of abortion-inducing drugs, contraception, and sterilization under the HHS mandate….

Obamacare’s anti-conscience mandate affords the narrowest religious exemption in federal law, effectively covering only formal houses of worship. Countless other religious employers, like schools, hospitals, and religious charities, are forced to provide coverage for the mandated services despite moral or religious objections—simply because they step outside the four walls of a church to serve others.

Creating the choice to violate conscience or forgo providing health insurance entirely—and risk hefty fines under Obamacare—the HHS mandate profoundly and adversely affects many employers and the people they serve….

Perhaps this is one of the fights anticipated by Roberts. And perhaps he wants to win it by more than 5-4 (or to ensure that he wins it). Robert John Araujo of Mirror of Justice has some related thoughts:

[The following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:

A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

…[I]t would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future [as discussed in the preceding quotation].

Could Roberts be angling to enlist Ginsburg as an ally in the looming freedom-of-conscience cases? That strikes me as a long shot because Ginsburg — “good” statist that she is, will no doubt find a way to wiggle out of her implied commitment to the free exercise of religion. But Roberts’s real targets may be Justices Breyer and Kagan, who joined his opinion — including the ruling that the expansion of Medicaid was unduly coercive of the States.

If Roberts has made the political calculations attributed to him — and I wouldn’t be surprised if he has — my only wish is that his calculations prove correct. If they are not, he simply will have wasted what would have been a perfectly good majority opinion, namely, the dissent of Justices Scalia, Kennedy, Thomas, and Alito.