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Did Justice Roberts Set Booby-Traps in His Commerce Clause Ruling? | The Nation

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Leslie Savan

Politics, media and the politics of media.

Did Justice Roberts Set Booby-Traps in His Commerce Clause Ruling?

In the months-long media game of predicting how the Supreme Court would rule on the Affordable Care Act, most pundits speculated on every possible outcome except the one that actually happened: that the Court would uphold the law’s individual mandate by renaming it a tax.

The fact that the tax angle was so outside the realm of anyone’s imagination may be one reason (in addition to the usual, stupid urge to rush to judgment) that both Fox News and CNN slapped egg on their own faces by announcing that the Court had struck down the ACA’s mandate, causing viewers (including President Obama) to believe Obamacare was dead. They were jumping to conclusions based on the first part of the ruling—that the individual mandate violated the Commerce Clause—without waiting to get to the next part: that the law is constitutional under Congress’s authority to tax.

But the “tax, yes/Commerce Clause, no” decision is nothing to necessarily celebrate. Justice Ruth Bader Ginsberg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, wrote separately, arguing against Chief Justice John Roberts’s opinion: “The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.”

Did, in fact, Roberts lay the groundwork for “gutting the Commerce Clause,” as Tom Scocca writes in Slate?

But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause

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…

Scocca goes on to quote from Roberts’s opinion (italics in original):

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do.

Scocca continues:

The business about “new and potentially vast” authority is a fig leaf. 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.

But not everyone thinks the Clause is in such jeopardy. David Cole of The Nation writes:

When one adds the dissenting justices, there were five votes on the Court for this restrictive view of the Commerce Clause. But that is not binding because the law was upheld on other grounds. And while some have termed this a major restriction on Commerce Clause power, it is not clear that it will have significant impact going forward, as the individual mandate was the first and only time in over 200 years that Congress had in fact sought to compel people to engage in commerce. It’s just not a common way of regulating, so the fact that five Justices think it’s an unconstitutional way of regulating is not likely to have much real-world significance.

Steve Rosenfeld of Alternet concurs:

what is important here—especially when seen through the frame of what the right-wingers lusted after—is that Roberts did not roll back any Commerce Clause powers that Congress currently has. Nor did he create new individual rights that can be used to limit the government’s current powers. In short, he pontificated and telegraphed his inclinations, but the constitutional landscape is largely unchanged….

Roberts may have set a tone by reminding all that there are limits to what the Congress can do under the Commerce Clause, but there have always been constitutional limits on what government can do—that’s the basis of individual constitutional rights. So yes, he threw some red meat to the hard right by saying the Affordable Care Act couldn’t hold up under the Commerce and Necessary and Proper Clauses.

However, what the right-wingers wanted was a precedent to shrink Congress’s authority to act in national economic crises—and they really didn’t get that. Of course, the reality is that the current Supreme Court is very unpredictable—and what appears as a reasonable outcome in one case can be followed by a very unreasonable decision in another.

Back to Justice Ginsburg, who hits on the problem with ACA in the first place: it’s not single-payer:

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to the chief justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

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