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Why Justice Roberts' Opinion Could Set Alarming Precedents

Roberts' opinion sets alarming precedents because it ignores decades of established Court doctrine, which could have massive implications.

Photo Credit: A.M. Stan


Forget all the spin and analysis you are reading this morning about how much of a political moderate Supreme Court Chief Justice John Roberts is for siding with the Court’s left-leaning wing and saving the Affordable Care Act from the judicial firing squad.

Roberts' opinion for the majority is radical and dangerous—and sets alarming precedents because it ignores decades of established Court doctrine, which associate Justice Ruth Bader Ginsburg noted out in exquisite detail in a lengthy dissent trashing the ruling. (See page 66.) Moreover, Roberts' opinion suggests that there is a majority on the Court that would vote to take the country back to the pre-Constitution days, when there was no clear authority to regulate interstate commercial activity or for the states to obey Congress.

The Chief Justice’s “rigid reading of the Commerce Clause makes scant sense and is stunningly retrogressive,” Ginsburg said, in a dissent joined by Associate Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer. Indeed, her dissent, like that of retired Justice John Paul Stevens in the Citizens United ruling that accused the ideological conservative majority of inventing facts to fit its politicized conclusion, will likely emerge as the most prescient and memorable aspect of the ACA ruling.

Health Insurance Is Not An Interstate Activity?

Roberts’ majority opinion said that the health insurance coverage mandate of the Act was permissible, but not under the Constitution’s Commerce Clause, which gives Congress power to regulate interstate business, nor under the Necessary and Proper Clause, which gives Congress power to legislate to address genuine problems.

As Ginsburg’s dissent and the ACA’s defenders noted in Court, healthcare costs account for more than one-sixth of the U.S. economy, and when uninsured people walk into hospitals seeking medical care, it’s other insurance policyholders—not the insurance companies—who end up paying for their medical bills. 

Instead, Roberts offered a convoluted analysis ignoring that basic fact. He said that the law’s insurance-buying requirement was not a requirement at all, because all the law did was impose a tax on people who didn’t buy a health plan after January 2014. Roberts said that not buying a health plan was not an economic activity and had no consequences. But he then went on to say that not having a plan was something that could be subject to a federal income tax penalty. And that taxing power was constitutional, he said.

“The mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income,” he wrote. “And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power.”

Roberts' twisted reasoning was a reflection of an argument made by right-wing think-tanks and commentators such as George Will that want the Supreme Court to resurrect the so-called Lochner Era, where in 1905 the Court started issuing decisions reversing progressive healthcare and labor reforms, holding an individual’s freedom to have a "contract" with their employer was more deserving of constitutional protection than societal concerns.

“The Chief Justice’s limitation of the commerce power to the regulation of those actively en­gaged in commerce finds no home in the text of the Consti­tution or our decisions,” Ginsburg wrote. “In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ repre­sentatives in both the States and the Federal Government... The Chief Justice’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning… bear a disquieting resem­blance to those long-overruled decisions.”

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