Thursday, June 28, 2012

Reflections on Roberts' Healthcare Opinion

As many know, the Supreme Court's eagerly anticipated healthcare decision came down this morning.  Chief Justice Roberts wrote the majority opinion, though he did not have a majority for every proposition.  My bottom line is that this opinion is a slam dunk win for the liberals and a work of craftsmanship if not statesmanship by Chief Justice Roberts.

  1. Though many are reporting that the Court gutted commerce clause doctrine, see, e.g., this article on Slate, I disagree with that view for two reasons.  First, Roberts' opinion on the commerce clause does not in any way change existing commerce clause doctrine.  Wickard v. Filburn, which is considered to be one of the most if not the most expansive understanding of federal commerce power, is cited approvingly by CJ Roberts.  No important (or unimportant) commerce clause cases were overturned by CJ Roberts today. One can read this case to say that five Justices believe that there are limits on Congress' power under the commerce clause.  That is true. But the current commerce clause doctrine is in fact quite broad.  With the exception of the individual mandate, which is very much sui generis, there is very little that Congress would want to do that it cannot do under the commerce power.  You can view the commerce power fight as a fight among those who believe that Congress can do anything under the commerce power, those who believe that Congress can do almost anything, and those who believe that there are real substantive limits on Congress' power.  CJ Roberts' opinion in the middle category. So, in reality, (given that the Court upheld the individual mandate), the liberals did not lose much, if anything.  I can't think of any federal law that is in jeopardy as a consequence of the Chief's opinion. If this case stands for the idea that Congress can regulate activity  but not inactivity, it will not do much damage to commerce clause jurisprudence. (One might argue that Roberts narrowed the necessary and proper clause; but to the extent that he did, the necessary and proper analysis is predicated on the scope of the substantive commerce power.  Given that the scope of the commerce power remains quite broad, the narrowing is, at this time, limited.)
  2. Second, Roberts was writing for himself in that part of the opinion.  The dissenters declined to join his opinion. So everything written on the commerce clause is just Roberts' view and not that of the majority of the Court.  Further, I don't think that that part of the opinion was necessary to the holding (though Roberts says otherwise, but he is not very persuasive on that point.)  So, I don't think there is a commerce clause holding. (Candor compels me to admit that there is a split among some of my colleagues on this point.)  (And of course, even if there is a commerce clause holding, see point 1 above).
  3. While the liberals lost nothing under the commerce power, they gained under the Taxing power.  In an opinion for the Court, joined by the four liberals, the Chief made it clear that just because Congress does not have the power under the commerce power does not also mean that it is disabled under the taxing power.  The Court noted that Congress' taxing power is greater than its commerce power, which is quite broad as we established above. Congress can use the taxing power to stimulate behavior and encourage activity.  This is a big win for the liberals here.
  4. In Part IV of this opinion, which is joined by Justices Breyer and Kagan, narrowed the Medicaid portion of the Act, holding that the Medicaid provision as written is coercive.  CJ Roberts ruled that Congress cannot remove all of the state's medicaid funding for failing to comply with the ACA's medicaid funding requirement.  This is not much of a restriction on Congress' power. Congress can still impose conditions spending on the expenditure of federal funds.  Congress can modify conditions on existing programs.  What Congress cannot do is threaten to terminate funding on other significant independent grants.  That's unconstitutional coercion.  This is not a significant limitation on the spending power and even Breyer and Kagan were happy to go along with it.
  5. Roberts ought to get points for craftsmanship and statesmanship.  The opinion is clearly and sometimes beautifully written.  It is deft (and deceiving) in many places.  It is not too heady to say in places the opinion reminds me on John Marshall's astuteness, except that Roberts is a better writer.
  6. Roberts should also get credit for being a statesman.  This opinion preserves some important legitimacy for the Court.
  7. Conservatives will spin this case, but they lost today.  There was no significant modification of the commerce power. The ACA was upheld essentially intact.  Congress' taxing power was expanded.  The spending power survived without any significant modification. Conservatives were worried about Kennedy, but it was John Roberts who delivered the crucial and painful blow.   Conservatives had four solid votes to strike down the entire ACA.  This is a big lost for them.  When you combine the healthcare decision with the immigration decision decided on Monday, it was not a good week to be a conservative.

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