Why Justice Roberts' Opinion Could Set Alarming Precedents
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.”
The problem for progressives with Roberts’ finding that there is no basis in the Commerce Clause, or Necessary and Proper Clause, is that this legal viewpoint—on top of the four other right-wing justices who said they would have thrown out the ACA as congressional overreach—suggests that in the future there could be a Supreme Court majority that would invalidate other laws regulating the national economy— such as a carbon tax to combat climate change, or new national energy strategy.
These so-called constitutional "originalists" seem intent on not just upholding their extremely pro-business vision of how Congress should address national issues—by providing more customers for the private sector—but they seem intent on taking the country back in time to before the Constitution was even written.
That would sound like an extreme interpretation of the ACA ruling, were it not for the other big piece of the ACA decision, which tells states that they can ignore Congress’ directions to expand state-run Medicaid programs providing medical care for the poor, which disproportionately are single mothers and children.
The Outrageous Medicaid Ruling
Roberts told states that they did not have to implement the state government section of the law, which would open up Medicaid programs to everyone under age 65 whose income was under 133 percent of the poverty line. (Seniors 65 and older can get healthcare under the federal Medicare program.)
Roberts decreed that states that did not want to implement the ACA would not face the fiscal penalty of losing all of their federal Medicaid funds—as envisioned by the law. Instead they would only lose funds for the Medicaid expansion, such as for covering more poor people and creating medical clinics in underserved areas.
“The Court today limits the financial pressure the Secretary [of Health and Human Services] may apply to induce States to accept the terms of the Medicaid expansion,” Roberts wrote. “As a practical matter, that means States may now choose to reject the expansion; that is the whole point.”
That option for states—which scholars say may be the first time the Court has found a congressional spending requirement to be unconstitutionally coercive—gives the GOP license to use healthcare for the poor as a political pawn. That tactic is hardly new—and already on Thursday right-wing Republicans signaled they were ready to sacrifice healthcare for the poor to score political points.
“Today’s ruling crystallizes all that’s at stake in November’s election,” said Virginia Gov. Bob McDonnell, Republican Governors Association chairman. “The only way to stop Barack Obama’s budget-busting healthcare takeover is by electing a new president.”
“We are very concerned that a sudden, dramatic increase in Medicaid spending could threaten Ohio’s ability to pursue needed reforms in other areas, such as education,” Ohio’s GOP Gov. John Kasich said in a quickly issued statement Thursday.
Never mind that Ohio will be raking in millions of dollars from natural gas fracking well fees by the time its share of ACA Medicaid payments would begin in three years. There are a handful of red state governors that previously rejected congressional economic stimulus funds—as they came from a Democratic-majority Congress and Obama.
Texas, South Carolina, Louisiana and Mississippi refused to accept federal dollars to extend unemployment benefits in 2009. Florida also rejected $2 billion for a high-speed rail line between Orlando and Tampa last year. The open question is will red-state Republicans also reject the ACA’s new federal Medicaid subsidies?
“It will be their option,” answered Stan Dorn, a senior health policy fellow with the Washington-based Urban Institute. “The federal government will not compel states to do it by threatening to withhold money or taking them to court.”
GOP politicians’ beating up on the poor is neither new nor radical. What’s radical about this part of the ACA ruling is the potential impact on public sector—not private sector—healthcare, because that may slow the creation of a uniform nationwide public system that could one day lead to universal government-delivered healthcare.
Having a patchwork of different state systems and services would hamper creation of a national public option—which progressives have long desired. In this respect, the Court’s ruling upholding the requirement that everyone have a health plan (private or public) and allowing states to opt out of Medicaid expansion is exceptionally pro-business.
Moreover, the Medicaid precedent also raises the question of what other costly federal programs states may object to—and refuse to implement if they forego the funding that comes with it? During the Court’s hearing on the ACA, Justices Sonia Sotomayor and Elena Kagan both noted that limiting Congress’ spending authority—as the Court majority did in this case—could limit Congress’s responses in national crises.
“When future Spending Clause challenges arrive, as they likely will in the wake of today’s decision, how will litigants and judges assess whether “a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds”?” wrote Ginsburg, quoting Roberts. “Are courts to measure the number of dollars the Federal Government might withhold for noncompliance?”
“The portion of the State’s budget at stake? And which State’s—or States’— budget is determinative: the lead plaintiff, all challenging States (26 in this case, many with quite different fiscal situations), or some national median? Does it matter that Florida, unlike most States, imposes no state income tax, and therefore might be able to replace foregone federal funds with new state revenue? Or that the coercion state officials in fact fear is punishment at the ballot box for turning down a politically popular federal grant?
“The coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation.”
Ginsburg said the majority’s Medicaid analysis was exactly the opposite of how the Constitution envisioned the separation of powers between Congress and the states.
“At bottom, my colleagues’ position is that the States’ reliance on federal funds limits Congress’ authority to alter its spending programs,” she wrote. “This gets things backwards: Congress, not the States, is tasked with spending federal money in service of the general welfare. And each successive Congress is empowered to appropriate funds as it sees fit.”
While many commentators praised the decision for not overturning the ACA, and lauded the Chief Justice for siding with the Court’s moderates, they are overlooking how pro-business, radical and politicized the ACA ruling is. Those politics will not just play out in the presidential campaign, where Mitt Romney on Thursday again vowed to overturn the law if elected, but inside red states as anti-Obama GOP leaders will use Medicaid as a political pawn.
Looking further down the road, the Medicaid precedent will tempt other states’ rights rebellions to rise, and also curtail Congress’s ability to respond—as a nation of 50 states—in a national emergency. Not only is the Roberts' ruling entirely pro-business, by sending tens of millions of new customers to insurers while limiting state expansion of public care, it is based on a right-wing vision of a shrunken Constitution and diminished congressional powers.
That is as radical a reshaping of congressional powers to regulate economic issues as the Citizens United was a radical reshaping of the campaign finance landscape. If you are reading media accounts praising Roberts, read Ginsburg’s dissent. It reveals just how pro-business, ideological and ahistorical the Court under Roberts truly is.