The Supreme Court’s decision in National Federation of Independent Business v. Sebelius—the healthcare cases—was a tremendous political victory for the Obama administration and, more importantly, the tens of thousands of Americans who will be saved from illness and death by the law. But make no mistake: the decision could also be a significant legal victory for the political forces committed to limiting the state’s ability to care for the weak and fragile among us.
In the hours after the health care decision was handed down, many commentators crowed over Chief Justice John Roberts’s statesman-like craft in putting together a moderate opinion that, in different parts, managed to unite the left and the right of the Court. They are half right. The opinion may be statesman-like, but it’s ultimately radical, endorsing a view of Congress’s power that had few, if any, takers until it was embraced by the Republican Party and its Tea Party flag-bearers. Indeed, it may even contain a seed that could unravel important benefits of the Affordable Care Act.
The immediate effect of the decision, of course, is that the law’s implementation can proceed. On the one hand, Roberts, with four liberal justices, held that the individual mandate was constitutional as an exercise of Congress’s taxing power. On the other hand, Roberts joined the four conservative justices in stating that he believed that the same mandate could not be upheld under Congress’s Commerce Clause power. This should not to be overlooked. The Commerce Clause is the central plank of Congressional authority, employed to support everything from the Environmental Protection Agency to the civil rights laws. Flouting the usual rule that judges must avoid addressing unnecessary constitutional questions, Roberts made it clear that his new limitation on the Commerce Clause power was necessary to his opinion, and hence arguably binding on future courts.
What Roberts has done is much like what his predecessor Chief Justice John Marshall did in the landmark 1803 case of Marbury v. Madison, which also announced a dramatic new legal principle in a way that evaded immediate political opposition. Marshall’s opinion in Marbury is celebrated today because, while addressing a relatively minor dispute about federal officials, he used that case to establish the Court’s power of judicial review. But in establishing this power, Marshall effectively sided with Jefferson in the dispute at hand. Because Jefferson won, the White House was in no position to attack the Court for its then-startling and controversial assertion of the right of the judiciary to review legislative- and executive-branch actions.
That power then lay dormant in the law like a loaded gun—only to come into use in the late nineteenth century. Like Marshall, Roberts has slipped into the law a principle that he favors, while at the same time drawing the political sting from its immediate application. My hope, though, is that unlike Marbury’s endorsement of judicial review, the conservative and libertarian vision of the healthcare decision remains unique to those cases.