Guest post by Professor Jedediah Purdy

Anyone who cares about fairness and good sense in social policy should count Thursday’s decision a victory – as most progressives are doing.

At the same time, we should be clear on this: The Supreme Court, on its own previously announced principles, had no business coming so close to invalidating the ACA.

Justice Roberts saved the constitutionality of a humane and centrist piece of social legislation.  Gutting it would have been radical, and it is striking that four justices would have done so.  Roberts also confirmed the view of the Constitution that made the attack on that law plausible.  That constitutional view is itself radical.  It affirms that the Court belongs at the heart of this issue, and guarantees its future role in similar controversies.

The fact that the Court came so close to gutting the law, and is being celebrated for withholding the knife, is a mark of how far the public has accepted aggressive judicial review of legislation that should not be constitutionally suspect.

Roberts accepted that Congress cannot require individuals to purchase health insurance under its power to regulate interstate commerce.  On his logic, if Congress had this power, it could also require people to buy cars or healthy food – the infamous broccoli example.

This may not matter much in practice.  Roberts upheld the requirement to purchase insurance under the separate Congressional power to tax by interpreting as taxation the fee for not purchasing health care.  The requirement to purchase is unusual policy design, and it is hard to imagine a similar law that could not be written to survive this combined commerce-and-taxation scrutiny.  The ruling on the Commerce power may be mainly symbolic.  For nearly 20 years, the Court’s conservatives have insisted on limits to the Commerce power while not doing much of consequence with those limits.  This opinion may be another of those rhetorical rulings.

That said, consider the way the Roberts opinion invites us to envision the world.  We are governed by politicians who want to force us into gym memberships and stuff broccoli in our faces.  The democratic process is not enough to protect us from such palpably unpopular laws.  We need the Supreme Court, wielding the Constitution, to protect our liberty to spend our money where we like, and not elsewhere.

To accept that these are urgent constitutional concerns, you need a very mistrustful sense of government.  You also need to see consumer liberty as a touchstone of American freedom.  For almost eighty years, constitutional law has assumed that Congress and state legislatures can be trusted to make economic judgments (better trusted than courts, anyway) under democratic scrutiny, and that individual economic freedom is not a constitutional liberty.  To be swayed by the Roberts opinion, you need to squint at the world in quite the opposite way.

The opinion’s rhetorical embrace of Tea Party constitutionalism should worry people who think complex problems like health care unavoidably require complex – and politically possible – solutions.  Congress adopted the individual mandate to deal the insurance companies into the political bargain, as conservative reformers had long urged.  If not for the saving thread of the taxing power, Roberts’s opinion would have left no solution to the health-care crisis that was both politically viable and constitutionally permitted.

The other major part of the Roberts opinion held that the federal government cannot withhold Medicaid funds from states as a punishment for the states’ failing to adopt the ACA’s expansion of Medicaid eligibility to 133% of the federal poverty line.  Roberts argued that the threat to withdraw Medicaid funding is “a gun to the head” that impermissibly coerces the states.  The idea is that, since the federal government cannot directly tell the states which laws to pass, giving them an offer they cannot afford to refuse amounts to dictating their Medicaid legislation.

For many decades, Congress has been influencing state legislation with fiscal carrots and sticks – offering money to fund policies it likes, withholding funds when states don’t pass desired laws.  If you ever wondered why every state sets the drinking age at 21, it’s because they would lose federal highway funds if they set it lower.  The Court has previously made a muted noises about possible limits to this use of Congress’s “spending power” to influence states, but this is the first time it has actually set a limit to that power.  This is a new, and potentially big, roadblock to federal policy-setting.  It intercedes the Court between Congress and the states and guarantees future challenges to spending legislation.

How much it will matter to the ACA’s anti-poverty effect depends on how many states will simply refuse to expand Medicaid, now that they know they can’t lose their existing funding for doing so.  The number may be large, given political hostility to the Act, which would mean more people without health coverage and more people crossing state lines in search of more generous care – part of the reason Congress aimed for uniformity.

Beyond the ACA, the Medicaid expansion ruling signals more aggressive federalism jurisprudence on a new front: limiting Congress’s use of fiscal power to shape uniform national policy.  Both here and in the Commerce Clause ruling, the Court encourages state resistance to federal lawmaking and, especially, litigation that advances new federalism arguments (like the commerce power decision) or presses the edge of old ones (like the spending power ruling).

It is revealing that Justice Scalia’s dissent for four conservatives does not really stake out a different view of the Constitution from Chief Justice Roberts’s.  It mostly exhorts the Chief Justice to apply his principles more exactingly, with less scruple for upholding the challenged law.  The constitutional premises of this opinion represent a conceptual and rhetorical victory for the right.  Time, and the November election, will tell how far that victory will go.

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Jedediah Purdy teaches in environmental, property, and constitutional law at Duke Law. He writes about how law interacts with and embodies ideas about freedom, social order, and the human relationship with the natural world, and how these ideas arise and change.

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