John Roberts And The Onion Opinion (Part One)
One of the more bemusing aspects of the ruling on the Affordable Care Act was the fact that many in the media were caught in a major faux pas when they first reported the mandate had been struck down only to backtrack after it became clear that the mandate had been upheld.
While certainly they deserve to be chastised for not reviewing things more carefully before reporting, the fact is that this opinion is more like an onion, with many layers to be uncovered. The long term impact of the decision may well follow the Churchillian view of the Soviet Union (a riddle, wrapped in a mystery, inside an enigma) but like Sir Winston I will do my best to read some of the tea leaves.
On the surface the opinion is a victory for the Obama administration and supporters of the individual mandate provision of the Affordable Care Act. But even that is not entirely true since the argument that they made in support of the mandate (that it is a valid exercise of the Commerce Clause power) was actually rejected by the court. Nonetheless the fact that the mandate was upheld when many thought it would not is a clear win for President Obama and supporters of the Affordable Care Act.
However when you read more deeply into the opinion you find some things that are actually a win for the conservative judicial viewpoint.
To begin with we have the Commerce Clause argument. The Constitution states that Congress has the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. What exactly that means has been the subject of considerable debate over the years and has seen a great deal of evolution. For many years that evolution involved expansion of the power but in recent years that trend has reversed.
There have been a number of cases which have gradually defined the extent of the Commerce Clause.
One of the first was Gibbons v Ogden in 1824 which held that the power under the Commerce Clause included the power for Congress to regulate interstate navigation (an important consideration in an era where most products were transported via water). But the general assumption was that in order for the Commerce Clause power to apply, the commerce had to cross a state line because otherwise it was not interstate.
Indeed the main thrust of the Commerce Clause in the 19th century was to act as a bar on state laws which burdened interstate commerce rather than granting Congress power to regulate things. This all changed during the New Deal when the Congress began passing a number of laws regulating various aspects of Commerce.
This raised issues because not all of the activity the regulations applied to was interstate in nature. Over a series of cases the Courts gradually applied the Commerce Clause to activities which were entirely intrastate (that is within a state and not crossing any boundries).
Then in Wickard v. Filburn the Congress passed legislation which reviewed the legality of the Agricultural Adjustment Act of 1938. The law sought to regulate the growing of wheat in order to prevent a glut from causing the market price to collapse. Mr. Fliburn was a farmer who grew wheat in excess of the legal limits but kept it for his and his family’s own personal consumption (Wickard was the Secretary of Agriculture).
Fliburn’s basic argument was that since he did not plan to sell the wheat there was no way that it impacted interstate or intrastate commerce. The court however disagreed and ruled that because Filburn would not need to buy wheat on the open market that it would impact the market and that if you multiplied Fliburn by all of the farmers out there the impact would be significant.
Over the next 50 years there was almost nothing that the Congress did that the Supreme Court found to be excessive or beyond the power under the Commerce Clause.
Then in 1990 the court heard the case of United States v. Lopez, reviewing a federal law which made it a federal offense to possess a firearm in a school zone. Although certainly most people supported the basic idea of keeping guns out of schools there was an issue with the Commerce Clause since education wasn’t really part of commerce. The congress had tried to justify it based on gun sales.
The court held that the law was not a valid exercise of the commerce clause and stated that there were three areas that the court could regulate under the clause.
First, Congress may regulate the use of the channels of interstate commerce;
Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities;
Finally, Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).
Over the last twenty years this trend limiting the powers of the Commerce Clause has been continued but usually in 5-4 decisions with the liberals on one side and the conservatives on the other.
Had the court upheld the mandate as an exercise of the power of the Commerce Clause it would not only have reversed this trend but in fact would have marked the first time the power was used to force someone to purchase a product.
Roberts however was able to not only prevent this but establish a clear doctrine that there are no circumstances under which the power of the Commerce Clause can be used to force someone to purchase a product, writing:
That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.
He also made it clear that the power of the Commerce Clause could not be used to broadly regulate activities, writing:
The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions
In short he took the cases of the last twenty years (since Lopez) and established firm precedents restricting the power and reach of the Commerce Clause. And while they did not agree with his reasoning he got the four liberal justices to provide him with cover against being called an ideologue.
This means that even if the court gradually shifts ideological composition in the coming years that these precedents are firmly established and the power of Congress is strongly limited.
In the next part (or parts) of my review I will look at what they did do with the taxing power and the quiet rebirth of the 10th amendment.