For the first time in my life, I got a prediction right. Before today’s decision in NFIB v. Sebelius, I was telling everyone I could that I was not particularly worried, that the core policy substance of the Affordable Care Act was safe. Here’s what my reasoning was, which I think was completely vindicated by my (very brief) perusing of the decision. I reserve the right to adjust this based on further reading of the case.
First, I did not think that Chief Justice Roberts wanted a direct confrontation with the entire Democratic Party. Striking down the substance of the ACA would have created such a confrontation, and put the Supreme Court at the center of the next election. I don’t think Roberts had a stomach for that.
Second, I actually do think that as cynical as we might be about the Court, the enforceable element of the mandate really is the penalty, which is a revenue measure and thus under a reasonable interpretation of the overwhelming weight of precedent totally kosher. That way of deciding the case was always available if a conservative justice wanted to take it, and Roberts did.
Third, I predicted that Roberts would not leave it at that. The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the batter and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl.
Fourth, Roberts’ decision is actually pretty consistent with the Court’s actions in other commerce clause decisions. The Court has been most aggressive in enforcing commerce clause limits when the actual policy consequences have been the smallest. U.S. v. Morrison, for example, struck down a provision of the Violence Against Women Act that was more or less redundant to state laws (it arguably strengthened them by giving women a federal right to sue, but striking down that provision didn’t leave a policy vacuum). Roughly the same thing was true in U.S. v. Lopez, where the Court struck down the Gun Free Schools Act. In both cases, the actual policy significance was relatively marginal, and the Court could reasonably assume that the laws in question were more a matter of position-taking by Congress than a really serious effort at policymaking. NFIB v. Sibelius was another matter altogether, a signature policy of the President and his entire political party. Had Roberts have followed the other conservative justices in overturning the ACA, he would have broken with the political strategy of the bulk of the Court’s previous commerce clause cases. But by ruling that the commerce clause invalidates the mandate but using the taxing power as an escape hatch, he is more consistent with the political approach of the Court that his conservative brethren decided to be.
So that’s what I thought before the case was handed down, and I think that logic explains why Roberts came down where he did. I did not think that Roberts would execute a similar brush-back maneuver on the Medicaid provisions of the law (upholding them but interpreting them narrowly as only applying to the new funds under the ACA, not the entirety of Medicaid), but doing so is completely consistent with what I assumed would be his political approach to the case.
One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.
Roberts went quite far in the direction of validating the constitutional sense of the case against the ACA, but what caused him to come down where he did is an entirely different mood than the folks who brought this case. In short, Roberts is not a conservative cut from the Randy Barnett/Richard Epstein cloth, which is comfortable with quite sweeping uses of judicial power to limit government. Roberts is sympathetic but simply lacks the taste for the jugular that they have, either as a result of his role as Chief Justice or his prudential sense of how far it is reasonable for the Court to go in using its power.
A last point—I seriously doubt that this is the end. Conservatives will not simply accept this decision and go home. The ACA is, in truth, a fairly ragged piece of legislative work, with lots of loose threads to pull on. Don’t be surprised if the Court takes further challenges to elements of the ACA, and if Roberts joins the conservatives in pulling at some of those loose threads. But at least the evidence of today’s decision is that the Chief Justice has made a decision not to pull the garment of the ACA apart entirely.
By Steven Teles
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