The Supreme Court’s Health Care Decision and the State of the Constitution

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Commentary, Constitutional Structure, Limited Government, Press Releases

Today’s decision by the United States Supreme Court pulled together four separate challenges to the Affordable Care Act. The challengers were targeting two specific elements of the federal law: (1) its requirement that almost every American must obtain government-approved health insurance coverage, and (2) its requirement that states must either expand the scope of their Medicaid programs or lose all Medicaid funding from the federal government. In order to resolve these questions, the Court first had to determine if it had the authority to hear the case, then it had to address the proper scope of the government’s delegated powers, then it had to decide whether the entire law must be struck down if any part of it was found to violate the Constitution. In a very complex set of opinions, the Court held that it did have the authority to hear the case, that Congress does have the power to require citizens to purchase health insurance, that Congress may not deny all Medicaid funds to states that refuse to expand their Medicaid programs, and that the part of the law the Court found unconstitutional did not require the Court to strike down the entire law.

The most hotly debated aspect of this case had to do with the government’s claimed justification for enacting the law. Specifically, Congress relied on its power to regulate commerce among the states. In the past 70 years the Supreme Court has interpreted the Commerce Clause so broadly that most legal scholars (and, sadly, many Supreme Court justices) no longer consider it a significant limit on Congress’s authority. But prior to this case the Commerce Clause had never been used to justify the federal government penalizing individual citizens for not engaging in commerce. In today’s case a majority of the justices decided that the power to regulate interstate commerce does not extend to imposing penalties on a citizen who has chosen not to act in a certain way. This ought to be good news, but there is a hitch – no single opinion expressing this perspective ever gained the support of five justices. That means that while lower courts may consider these opinions imposing limits on the application of the Commerce Clause to be persuasive, they are not binding on the lower courts.

The government had also argued that the individual insurance mandate was justified by Congress’s authority “to make all laws which shall be necessary and proper for carrying into execution” its other Constitutional powers. Again, five of the justices soundly rejected this argument, with Chief Justice Roberts writing that “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.” Justices Scalia, Kennedy, Thomas, and Alito focused on the idea that the Necessary and Proper Clause could not be read in such a way that it would create unlimited power for the federal government, pointing out that the government had been invited to suggest what controls on private conduct could not be justified under its interpretation of that clause, and that it had failed to offer any. But, as was the situation with the Commerce Clause arguments, this approach to the Necessary and Proper clause will have limited force in the lower courts because the five justices who agreed on this point failed to join a single opinion expressing this position.

Five justices did agree, however, that the individual insurance mandate could be justified as an exercise of Congress’s taxing power. Although the statute itself called the payments citizens would have to make if they failed to obtain the insurance coverage required by the ACA a “penalty” (and although the President himself had gone far out of his way to insist that the ACA did not impose any new taxes,) Chief Justice Roberts decided that the Court could disregard the statutory language. This was a critically important point because in prior cases the Court had distinguished between “taxes” and monetary “penalties.” A tax was a collection of funds for the purpose of raising revenue for the government, while a penalty was a payment imposed on an individual because they had violated the law. The Court had never held that a payment required by a statute could be both a tax and a penalty. And, in fact, Chief Justice Roberts explicitly stated that “it is only because we have a duty to construe a statute to save it, if fairly possible, that [the payment required for failure to obtain insurance] can be interpreted as a tax.” Thus, it was only by the slimmest of judicial margins that the Court upheld the insurance mandate.

Surprisingly, the justices formed a powerful consensus around the question of whether Congress overstepped its bounds in threatening to pull all Medicaid funding from states that chose not to expand their Medicaid programs. Seven of the nine justices agreed that Congress had gone too far – only Justices Ginsburg and Sotomayor disagreed. The two opinions expressing the thoughts of the majority each stated that the federal government may offer grants as an incentive for states to adopt certain policies, but that the nature of such an offer is similar to one private party offering a contract to another private party. A contract is not valid if one is forced to sign at gunpoint, and one party also cannot unilaterally change the terms of the agreement. The justices reasoned that because Medicaid funding makes up such an enormous part of most states’ budgets, they could not reasonably refuse to follow Congress’s orders if failing to do so would risk the loss of all that money. Thus, the Court held that the Secretary of Health and Human Services could not constitutionally enforce that part of the ACA that would allow her to withdraw all Medicaid funding from any state that chose not to expand its existing Medicaid program.

This brought the Court to the question of “severability,” which asks whether finding part of the law unconstitutional would require the entire law to be invalidated. Again, the Court split three ways. The four conservative-leaning justices all believed that the entire law should be struck down. Justices Ginsburg and Sotomayor would have found that there was no constitutional violation in the first place. Chief Justice Roberts, joined by Justices Breyer and Kagan, stated that even though the ACA’s Medicaid expansion was unconstitutional, the Court would not strike down the entire law on that basis because it was not clear if, in the absence of that provision, Congress still would have enacted the law. Because five of the justices said that the rest of the law should survive, the opinion of Chief Justice Roberts controlled the outcome – even though it only had the support of two other justices.

So what does all this really mean?

In short, the Supreme Court has once again expanded the power of the federal government. Today’s decision was a clear win for President Obama because his signature piece of legislation has survived its first furious assault. But there remains a question as to the durability of that victory in the larger war regarding the powers of the federal government. Today’s opinion hung by the slenderest of threads and, in fact, it seems quite clear that Chief Justice Roberts probably intended to side with Scalia, Kennedy, Thomas, and Alito before switching his vote at the last minute. The reasoning in the majority opinion regarding the taxing power is not particularly persuasive and the holding of this case in that regard is very, very narrow. It is possible (although not at all likely) that the Court could grant a rehearing of this case and that Chief Justice Roberts might reverse himself. For now, however, the Supreme Court has given the federal government one more tool with which it may exert control over citizens’ lives.

It is ironic that at the beginning of his opinion Chief Justice Roberts included this quote: “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution so carefully constructed… And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.” If only the Chief Justice had followed his own advice! Today’s decision is another setback for those of us who believe in constitutionally limited government. But the larger war to see the Constitution properly interpreted and enforced goes on, and the Freedom Center of Missouri remains on the front lines of that fight. We are working every day to win hearts and minds in courtrooms, hearing rooms, conference rooms, and city council chambers all over the state. With your help, we are helping to turn the tide of governmental overreach and we are winning people over to the cause of liberty. If you believe as we do that this fight is critical to your family’s future and the future of the nation we live in, please click the “Subscribe” or “Donate” link on the right side of this page and help ensure that our work will be able to continue.