The Court that Couldn't Say "Stop!"

Monday, August 13, 2012

The Supreme Court decision upholding the national health care act handed President Barack Obama a victory and dealt constitutionalists a loss. But most important, the decision in the case, NFIB v. Sebelius, kicks the health care controversy back to elected politicians for solutions and warns conservatives against placing all their eggs in the basket of the courts. It suggests that the decades-long conservative quest to remold the federal judiciary has foundered, as displayed in Chief Justice John Roberts’s elevation of institutional concerns for the Supreme Court’s political position over reaching the right answer under the Constitution itself.

The biggest surprise, of course, was how Roberts—who served in the Reagan White House and Justice Department and was appointed to the Supreme Court by President George W. Bush—not only joined the solid bloc of four liberal justices but also wrote the majority opinion. He agreed with the four conservatives (Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) that the federal government could not use its power to regulate interstate commerce to compel individuals to purchase health insurance. But then he turned around and agreed with the liberals (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) that Congress could enact the individual mandate under its power to tax, which is broader than its power to directly regulate.

Roberts’s opinion had something for everyone. A 7–2 majority decided that Congress had unconstitutionally coerced states when it threatened to cut off all Medicaid funding if they did not expand the program along federal guidelines. This was the first time since the fight over the New Deal that the court had enforced constitutional limits on Congress’s power to impose mandates along with federal funds. But Roberts then concluded that finding this provision unconstitutional did not render the whole ObamaCare statute unconstitutional—that the provision was in fact severable from the rest of the bill.

Conservatives sought a silver lining. The court rejected the notion that the federal government could regulate inactivity, for instance. “The Framers gave Congress the power to regulate commerce, not to compel it, and for over two hundred years both our decisions and Congress’s actions have reflected this understanding,” Roberts wrote. “There is no reason to depart from that understanding now.” This was the very argument liberal members of Congress and their legal experts had mocked, as when then–speaker Nancy Pelosi exclaimed “Are you serious?” in response to a question about the bill’s constitutionality. By refusing to bless the idea of a limitless commerce clause, the court restored the central constitutional principle of limited federal powers.

But the hope that Sebelius covertly represents a “substantial victory,” in the words of George Will, is likely to be unfulfilled. Rather, it is mostly a symbolic victory that does little to limit the growth of our massive, unaccountable administrative state. Sebelius is a ticket good for one trip only. As the challengers to ObamaCare acknowledged during oral arguments, no other federal law depends on reading the commerce clause to include inactivity. The welfare state expands unabated and undeterred. The federal government will continue to grow, add more billions to our federal deficit every day, and limit more private freedoms with more regulations.

Moreover, what Roberts gave on the commerce clause, he quickly took away on the taxing power. He and the four liberal justices upheld the individual mandate as a tax because anyone who does not buy health insurance must pay a financial penalty. But ObamaCare created a tax unlike any other before. The government has long imposed excise taxes, based on the sale of goods such as cigarettes or gasoline, and taxes based on income. Here, the Obama Congress forced a “tax” on anyone who refused to buy insurance. As the extraordinary joint dissent observed, the court has never classified as a tax a penalty for passively violating the law.

Worst of all, Roberts’s treatment of the individual mandate as a tax blew a hole in the commerce clause. To see this clearly, consider the much-discussed hypothetical about being forced to eat broccoli—which, I am happy to say, is only a hypothetical at my own dinner table. At oral argument, Scalia had argued that the government’s claim that it could force people to buy health insurance meant that it could also compel them to eat broccoli. Roberts agreed that a federal law forcing Americans to eat their vegetables must be unconstitutional. But, as the dissent argued, Roberts’s decision would allow Congress to pass a law that everyone must eat broccoli or pay a tax penalty. The federal government would exercise the unlimited power that the Framers did not want it to have, just so long as it recharacterizes its regulations as tax penalties.

Thus Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But simply enforce the mandates with a financial penalty, and suddenly they transform into constitutional exercises of Congress’s power to tax, which extends far beyond the commerce clause.


Another glimmer of cheer for conservatives apparently came with the majority’s finding that ObamaCare’s expansion of Medicaid violated state sovereignty. Congress had threatened to cut off all of a state’s Medicaid funding if it refused to expand coverage as dictated by the federal government. Federal Medicaid grants average about 22 percent of all state expenditures. Seven justices agreed that threatening to take away that much federal funding gave states little choice but to accept federal terms.

Conservatives have long dreamed of placing limits on the spending power, through which the federal government extends its grasp into state areas such as the environment, education, housing, and family matters in ways that the Framers would never have intended. Perhaps Sebelius will lay the groundwork for expanded judicial scrutiny. It could also be an outlier because of the large sums at stake: the majority may have struck down the Medicaid expansion only because the amount of federal funds at risk—more than 20 percent of most state budgets—was so great. If Congress threatens to cut off 5 to 10 percent of funding to force states to obey federal mandates, will the court strike that down too? Don’t count on it.

Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state.

The court still could have struck down the whole law because of the unconstitutionality of the Medicaid expansion. But Roberts would have none of it. Even though Congress failed to include a provision severing any unconstitutional provisions, Roberts and the four liberal justices agreed that the rest of ObamaCare would remain in force. To avoid the natural conclusion that the whole law should be struck down because it created a complicated, interlocking regulatory scheme, the court essentially rewrote the law. As the dissenters wryly observed: “The court today decides to save a statute Congress did not write.”

The flimsiness of Sebelius on the merits left some conservatives hoping that Roberts was pursuing a deeper political game. Charles Krauthammer called the opinion “one of the great constitutional finesses of all time” by upholding the law on the narrowest grounds possible—thus doing the least damage to the Constitution—while turning aside the Democratic Party’s partisan attacks on the court.

This observation raised comparisons to Marbury v. Madison, the 1803 case where Chief Justice John Marshall deflected President Thomas Jefferson’s similar assault on judicial independence. Of the Federalist Party, which he had defeated in the 1800 election, Jefferson declared: “They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased.” Jeffersonians in Congress responded by eliminating federal judgeships, removing a lower court judge, and impeaching (but failing to convict) a Supreme Court justice.

Marshall seized the opportunity presented by Marbury to strike down section 13 of the Judiciary Act of 1789 and deprive his own court of the power to hear a case against Secretary of State James Madison. Marbury effectively declared that the court would not stand in the way of Jefferson or his congressional majorities; it would not hold another federal law unconstitutional until Dred Scott v. Sandford a half century later. Jefferson won the short-term political battle, but Marshall won the war by reserving for the courts the right to declare federal laws unconstitutional.


Roberts may have thought he was following in Marshall’s footsteps. Unfortunately, the more apt comparison is to another chief justice, Charles Evans Hughes. Hughes’s court struck down the centerpieces of President Franklin Roosevelt’s first New Deal, such as the Agriculture Adjustment Act and the National Industrial Recovery Act, because they extended the commerce clause power beyond interstate trade to intrastate manufacturing and production. Other decisions blocked Congress’s attempt to delegate to federal agencies its legislative powers, and thereby evade the Constitution’s difficult process for enacting new laws.

FDR reacted furiously. He publicly declared, “We have been relegated to a horse-and-buggy definition of interstate commerce.” After winning a resounding landslide in the 1936 elections, FDR responded with the greatest attack on the courts in American history. His notorious court-packing plan proposed to add six new justices to the Supreme Court, ostensibly to allow younger judges to help their older colleagues understand the modern economy, but with the obvious aim of overturning the court’s opposition to the New Deal.

Placing all their bets on the judiciary led conservatives to forget the most important forum: the political process.

Under this threat, Hughes and Justice Owen J. Roberts switched their votes. As they upheld the constitutionality of the National Labor Relations Act, minimum-wage and maximum-hour laws, and other New Deal laws, the court-packing plan died in Congress. Constitutional scholars refer to the abrupt and unprincipled about-face as “the switch in time that saved nine.”

But while Hughes succeeded in removing the court from the political controversies of the day, like Chief Justice Roberts he sacrificed fidelity to the Constitution’s original meaning. In exchange for judicial independence, also like Roberts, Hughes blessed the modern welfare state’s expansive powers and unaccountable bureaucracies—the very foundations of ObamaCare. Hughes made one of the great constitutional mistakes for nothing: the court-packing plan died anyway, further New Deal initiatives stalled in Congress, and the Great Depression would not end until World War II rearmament began. Roberts too may have sacrificed the Constitution’s last remaining limits on federal power for very little: a little peace and quiet during a presidential election year.

While a disappointment for both the economy and the Constitution, Sebelius contains an important lesson for conservatives. They cannot rely on the federal courts to save them from the ever-expanding liberal welfare state. Placing all their bets on the judiciary led conservatives to forget the most important forum for making their case: the political process. The court is not the place for policy judgments, as Roberts affirmed in the majority opinion. “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them,” the opinion declared. “It is not our job to protect the people from the consequences of their political choices.” That was one thing Chief Justice Roberts got right.

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