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The United States Supreme Court has finally spoken on the constitutionality of Obamacare, particularly its core provision – the so-called individual mandate under which most Americans must buy health care insurance with at least the minimum amount of coverage stipulated by the federal government or pay a fine. The Supreme Court upheld the mandate on the grounds that it is within the taxing authority of Congress (Art. I, §8, cl. 1). Chief Justice John Roberts provided the swing vote to give the liberal justices on the bench the majority they needed to uphold the controversial law.
In a 5-4 decision written by Chief Justice Roberts, he concluded that “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” Although the Obama administration had tried to characterize the individual mandate as a legitimate exercise of congressional power under the separate Commerce Clause of the Constitution (Art. I, §8, clause 3), Chief Justice Roberts’ opinion rejected that approach and opted to call the fine, imposed on individuals who decide not to buy health insurance despite the mandate, a tax.
This sets up a very interesting political dynamic for this year’s presidential campaign. President Obama can claim a victory on the substance of his health care law. His most significant domestic policy achievement has now been declared constitutional by a majority of the Supreme Court led by the normally conservative Chief Justice. On the other hand, Obama can no longer duck the reality that Obamacare is built on the foundation of huge tax increases that affect virtually all Americans. Furthermore, the left’s incessant attacks against the court and the right as of late — that the conservative Supreme Court has become corrupted by “politicalization” and “activism” — have suddenly become obsolete and exposed as hypocritical. After a slim 5-4 ruling, of the kind leftists typically scorn as illegitimate, The New York Times‘ Ethan Bronner is now opining on the Roberts court’s “balance” and judiciousness. Robert Shrum at the Daily Beast praised the split decision as “clear and compelling,” where before he was anxious to lead the offensive against the “Tea Party Supreme Court” and the “five horsemen of the judicial right.” Much has changed in a single day.
The first impression, and the one that is being played out in the mainstream media, is that Chief Justice Roberts had some sort of epiphany and saw the logic of the left’s arguments in upholding Obamacare. Yet while the outcome supported by Chief Justice Roberts certainly looks that way and is disappointing to many conservatives, the Chief Justice included a number of nuggets in his opinion that will serve conservatives well in future cases.
Indeed, although the Obama administration won the day in terms of the constitutional validation of Obamacare by the Supreme Court, Chief Justice Roberts’ opinion lays down some important markers regarding the core constitutional principle of enumerated federal powers. This may be useful in the event of any future attempts by a left-leaning Congress to push beyond discernible limitations on its power under the Commerce Clause in order to regulate the everyday lives of the American people.
“If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution,” Chief Justice Roberts wrote. “The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions.”
Chief Justice Roberts also lays down a marker on the principle of federalism – the relationship between the federal and state governments:
Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed.
The federalism issue comes into play on the separate constitutional question dealing with Medicaid expansion and penalties placed upon states that decline to spend more of their own money to pay for expanded health insurance coverage. His opinion places limits on how far the federal government could impose its policies on the states.
Thus, while the final outcome of the Supreme Court decision upholding the constitutionality of Obamacare is disappointing and was reached by the circuitous route of relying on Congress’ broad taxing authority (even though Congress and the Obama administration had labored to avoid the tax nomenclature in the statute in favor of the term “penalty”), in the long run Chief Justice Roberts accomplished two key objectives. He shielded the legitimacy of the Supreme Court from partisan attacks that would have been generated from the White House, Congressional Democrats, the mainstream media and their colleagues on the Left accusing the Court of unbridled judicial activism. Second, as discussed below, he used the opinion as an occasion to reinforce core conservative constitutional principles regarding limitations on congressional power affecting individuals and the states.
In first dealing with the argument that the Commerce Clause provided a constitutional basis for the Obamacare individual mandate, Chief Justice Roberts’ opinion rejected this argument but walked a fine line. Chief Justice Roberts acknowledged the precedents greatly expanding the reach of the Commerce Clause over economic activities that individually, or in the aggregate, may have an effect on interstate commerce. He did not seek to reverse or erode any of those precedents – a demonstration of respect for well-established Supreme Court precedents (stare decisis) and judicial restraint. However, he declared for the first time in a major Supreme Court opinion that there is a substantive difference between regulating activity and inactivity, which has constitutional significance:
The Constitution grants Congress the power to “regulate Commerce”…The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous…. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.
Based on this reasoning, Justice Roberts’ opinion concluded that since the individual mandate did not regulate existing activity, but instead “compels individuals to become active in commerce by purchasing a product,” it could not be justified as a valid exercise of Congress’s powers under the Commerce Clause (emphasis in the original).
Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him
Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.
The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.
The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
The Chief Justice’s opinion also concluded that the individual mandate cannot be sustained under the Necessary and Proper Clause of the Constitution (Art. I, §8, clause 18) as an essential component of the health insurance reforms. The Necessary and Proper Clause gives Congress the authority to “make all Laws which shall be necessary and proper for carrying into Execution” the powers enumerated in the Constitution.
As he did in dealing with Congress’ powers under the Commerce Clause, Roberts did not seek to reverse or erode any Supreme Court precedents interpreting the reach of the Necessary and Proper Clause. He acknowledged that these precedents have been very deferential to Congress’ determination that a regulation is “necessary.” However, like the Commerce Clause, there are limits on what Congress may do under the Necessary and Proper Clause. He held that the individual mandate went too far.
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