...and the real fight is just beginning.
I'll admit to feeling more than a little shake-my-fist-in-the-air victorious yesterday upon learning of the Supreme Court's decision to uphold the Affordable Care Act. But there's more in the decision than first glance reveals. Hamline's David Shultz says Obama won by losing:
the backup argument by the Obama administration was that Congress's power to tax saved the mandate. Yes, sort of. Roberts again drew on another landmark New Deal case United States v. Darby. Here a New Deal Court affirmed a law under Congress's taxing power to regulate and eliminate child labor. In the health care case on Thursday Justice Roberts and the four liberals affirmed the individual mandate as a tax. They contended that no one is required to buy insurance but if they do not then they have to pay a tax. Thus, contrary to media reports, Congress cannot compel us to buy health insurance, but they can tax us if we do not.
Some may state this is a difference that does not make a difference. This is not true. The four liberals on the Court would have affirmed the individual mandate on Commerce clause grounds in addition to the tax claim but Roberts only supported it on taxing power. What are the implications? In the last 50 or so years major legislation on civil rights and many other regulatory issues have been affirmed in part on Commerce Clause grounds. This decision today actually trims back the Commerce Clause power of the federal government, raising questions about the Voting Rights Act and other civil rights legislation in the future. This is the case both because of a weakened Commerce Clause and also because it suggests a Court perhaps less sympathetic of federal power than thought. All this is significant especially in light of state challenges to legislation in these areas.
Shultz is not the only commentator noting that while he wrote the majority opinion that upheld the ACA, Chief Justice Roberts agreed with the conservative bloc on the court on a wide-ranging political issue, that of Commerce Clause's scope.
Of course, some watchers aren't convinced that it's that pernicious:
Just wanted to point this out to you guys that there seems to be trending, at least among liberal commentators and libertarian bloggers, the notion that CJ Roberts' ruling is akin to CJ Marshall's ruling in Marbury v. Madison - that he hid the ball, got the legal result that he desired, and tricked his political opponents into thinking they won. See Ezra's piece here. This is a bit of nonsense. First, the ruling hardly does anything to expand existing limitations on Congress' legislative power under the Commerce Clause. Second, Roberts gave an expansive reading of Congress' power under the Taxing Clause, susceptible to the exact same slippery slope (broccoli) arguments that were made against upholding ACA under the Commerce Clause. Third, Roberts has consistently demonstrated that he's simply not that concerned about states rights and federal power (the immigration case immediately comes to mind). If anything, he knows that's a losing battle. The Healthcare Cases are better understood as an attempt by Roberts to save the political capital of the Court for other fights - such as affirmative action, voting rights, marriage equality, corporate speech - and not as a sneaky way to further the federalism agenda.
Bottom line? The fight over the federal government's power to help make citizens' lives safer and healthier is not over, and what we have here is a perfect example of why it is so galactically important to reelect President Obama this fall.
Because, let's be honest; a President Romney wouldn't be nominating Supreme Court justices who would have agreed with Justice Ginsburg's defense of the Commerce Clause argument.