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Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.
When the legal challenges to the Affordable Care Act first started taking form, the assertion that Congress did not have the power to regulate the health insurance industry under either the Commerce Clause or the Necessary and Proper Clause was largely seen as an academic argument that had percolated in law schools thanks to a robust presence of the Federalist Society. After all, how could an industry that accounts for approximately 16 percent of economic activity in this country be said not to affect interstate commerce? Of course it can be regulated. Under the even the most cynical view opponents of the Affordable Care Act peddled these arguments simply as political cover for the Court to invalidate the law since the tension between the Obama administration and the conservative wing of the Roberts Court was nearly palpable.
The Court declined the political cover, a fact I think speaks loudly to the rumors that Chief Justice Roberts was concerned about the partisanship and rancor brewing within and around the Court, and the implications of this for his legacy. But the Chief Justice hardly “joined the liberal wing” of the Court in upholding the law. In fact, his decision gives conservatives a potentially significant tool to further attack the social safety net in its limitation of the Commerce Clause.
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.
That is not the country the Framers of our Constitution envisioned.
For centuries the Court has held that these congressional powers are broad and expansive, and that the main risk an expansive view of federalism poses is a political risk, not any real risk to individual rights or liberties. Then, in 1995, in the Court’s decision in United States v. Lopez, Chief Justice Roberts’ predecessor re-discovered those limits.
The Lopez decision invalidated the law banning the possession of guns near schools on the grounds that the activity challenged — gun possession and presumably gun use — was too far attenuated from the stream of commerce for Congress to regulate. Gun rights activists heralded the decision as a triumph of the Second Amendment, but social conservatives saw much more in the ruling. They saw the dawning of a new Golden Age limiting federal power and future legal avenues to challenge laws and policies they deeply opposed — like the Affordable Care Act.
In rejecting Congress’s ability to regulate the health insurance industry under the Commerce Clause while still upholding the mandate under Congressional taxing authority, Chief Justice Roberts builds on the Lopez line of reasoning in a way that did no broad political damage to the Court — after all, the mandate survived and only those on the hard right seem intent on calling for Roberts’ impeachment — while still giving lots of juicy tidbits for federal judges to cite in future rulings hemming in other Congressional action. And since so much of Congressional action on domestic programs relies on its authority under the Commerce Clause and the Necessary and Proper Clause, it’s too soon to say if this distinction is again merely academic.
More importantly, Roberts extends the logic of Lopez which may prove to be more significant than we realize even now as the Court considers future challenges to Medicaid funding, efforts to defund Planned Parenthood and affirmative action challenges. As the logic goes, just because social ills have a broad economic impact does not mean Congress is empowered to fix them.
It’s a logic that whole-hardheartedly rejects the very premise of the New Deal and our social safety system and one that was just reinforced within the confines of a win on health care reform. Those of us that support the bill should celebrate the victory but we cannot get comfortable now. Chief Justice Roberts made it clear he upheld the law because he had to, both legally and politically. But in many ways the decision is a chilling repudiation of the heart and soul of its reform and a rallying cry for more vigorous challenges to the safety net. And we can expect conservatives to heed the call.
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Under the Logic of Lopez, despite the sophistry of Scalia, Domestic (Home grown) consumption and use of MJ, and any other drug, would not be covered by the commerce clause.
What Roberts wrote is not part of the signed decision that carries the full force of law, but what legal observers call ‘dicta’. It has no legal effect. It is not outcome determinative.
Who says so? Ruth Bader Ginsburg says so.
Here, from the opinion, here’s Justice Ginsburg on Chief Justice Roberts’ take on the Commerce Clause (footnote 12, p. 102, bolding mine) –
In other words, it seems like Ruth Bader Ginsburg, at least, believes that Roberts’ bloviatings on the Commerce Clause were just so much importless hot air.
The first problem, RH, is that you support this law.
And ain’t it a sad day, when marijuana, unadorned with the label of “medicinal” can be more readily (and legally) consumed in a state whose senator is Rand Paul than California which has Sen Boxer looking after us? (Kentucky allows for possession of eight ounces of weed with n ability of the law, at least state-wise) to hinder that possession.
Original intent from blog writing of the 1780′s, now “‘dicta’” to guide our courts to the justification for the political decision their corporate sponsors want – there is no law in this country today, at least not at the top.
I was once upset with the Congressional Reports on a bill being quote as reason for an opinion – not the wording of the law – then it was discussions or insets into the Congressional Record – then it was law overseas – now they are trying to get signing statements made into law – and then I gave up.
Marbury v Madison was 15 years after the 1787 convention had 15 voices unsuccessfully push for that total power over other branches power in the USSC – wanting to follow the English Chief Justice Edward Coke’s 1610 opinion despite that opinion being overturned by the events of 1688.
For 15 years we had a couple of folks doing good work – determining who should pay when someones chickens getting killed – 15 years of freedom – until 4 folks named themselves king in 1803.
We are now hearing Obama’s apologists saying because rightwing politicians like Rand Paul and Mitt Romney oppose Obamacare that Obamacare and the U.S. Supreme Court’s ruling upholding it must be good.
Opposition from Rand Paul, Romney and the Republicans aside, this legislation is patently unconstitutional because it forces and coerces people to purchase insurance from PRIVATE FOR-PROFIT insurance companies.
It would be constitutional only if people were being forced to purchase health insurance from a government owned co-op or public enterprise.
This is the bottom line. We should be defending the Constitution not backing out of this fight simply because these right-wingers are opposed for other reasons.
Just because a bunch of right-wing politicians are opposed to something doesn’t make it right— ethically, morally or Constitutionally; nor does their opposition mean that this Obamacare will work, because it won’t.
For starters, does anyone really think that the few good parts of this legislation will be adequately financed? If so, dream on— because right now Barack Obama, the Democrats and the Republicans refuse to adequately fund VA, the Indian Health Service, Medicaid, Medicare and the National Public Health Service as city, county and state health care services and agencies have had their budgets slashed while Planned Parenthood goes severely underfunded.
Obama and these Wall Street politicians aren’t going to adequately fund any health care programs when they have these costly imperialist wars to finance which are so profitable to Wall Street coupon clippers just like what they expect to make with people being forced to buy insurance from them.
War and health care are two rackets managed by the same Wall Street crowd and we pay the bill for both as they profit.
When all is said and done we are getting screwed again.
Plus this most undemocratic, unconstitutional and obscene ruling from the United States Supreme Court intended by Roberts to provide Mitt Romney with never ending ammunition now until election day has opened the door wide to allow the government to force people to purchase many other “social programs” from private for-profit corporations and it places Social Security in jeopardy. If you can be forced to purchase health insurance from private for-profit insurance companies will the next step be forcing people to purchase retirement accounts from these same insurance companies as the Social Security fund is turned over to a consortium of private insurance companies to “manage?”
I suggest some rich progressives get it together to start a “Co-op Insurance Program.”
There are a few states, like Vermont and Minnesota, doing variations on that thing.
Hey Alan Maki @6 ,nice breakdown.I fear you are about a year ahead of the ‘folks’ in understanding this is about the inherent market power of corporate monopolies to leverage unfettered price extortion as our taxes become for-profit revenue streams .
I never understood Robert’s point to be that the federal government could not regulate the health insurance industry. If that were the case, then he’d have thrown out the ACA in its entirety since the Act does regulate the industry. His reference to the Commerce Clause had to do narrowly with the individual mandate.
Roberts ruled (as I understand it) that the government could not compel individuals to purchase health insurance from the private sector, but it could give the taxpayers the choice of either purchasing insurance or paying a tax (the “fine” or “penalty”) to cover the costs of providing emergency care to the uninsured. Since governments can mandate that hospitals provide such care to the uninsured, it can mandate that the uninsured pay a tax to offset the costs of such services.
Both George Will and Charles Krauthammer consider this ruling to be a victory for conservatism. They allowed ACA to stand, but significantly narrowed the applicability of the necessary-and-proper and the commerce clauses, which are the backbone of liberalism federalism. Now any district court can start dismantling the ability of the federal government to govern.
The logic of this post would be flawless except for the fact that last week’s decision did not limit Congress’s authority to regulate insurance under the Commerce Clause. It limited it under the “spending” power of Congress. It ruled Congress could not regulate “inactivity” like “not buying insurance” as interstate commerce. But it did not rule that Congress could not regulate insurance, health or otherwise, under the Commerce Clause. That would have required explicitly overruling the 1944 decision of United States v. Southeastern Underwriters which held that the “business of insurance” is interstate commerce under the Commerce Clause.
Obama and the Corporatists win and the citizens of USA,Inc. lose.