The chief justice and the individual mandate

    With yesterday’s Supreme Court ruling on the Affordable Care Act, Chief Justice John Roberts showed an awareness of his role as a guardian of the Supreme Court’s integrity and legitimacy.

    Chief Justice Roberts’ controlling opinion on the constitutionality of the Affordable Care Act held that the Act’s individual mandate could not be upheld under Congress’s power to regulate interstate commerce because the mandate regulated mere “inactivity,” forcing “individuals not engaged in commerce to buy an unwanted product” — health insurance. The Chief Justice then saved health care reform, however, by affirming the mandate as an exercise of Congress’s power to “lay and collect taxes.”

    In a country with a more sensible tradition of constitutional interpretation, the constitutionality of the mandate would have turned more directly on some basic questions of institutional design in a federal system. For example: Is Congress legislating within one of the broad subject areas, such as interstate commerce, that the Constitution has entrusted to it? Are the problems the legislation addresses so large and interconnected across the nation that their reform might reasonably invite a single national response rather than hodge-podge state responses? And would that single national response unreasonably invade one of the domains that have usually adequately been left to the states, such as family law or general-purpose criminal law? Seen from that perspective, the constitutionality of the mandate would have been obvious, as would the silliness of the alleged distinction between “activity” and “inactivity.”

    Nevertheless, it’s worth conceding this much to the other side: Our constitutional tradition in this area has not tended to focus on these sorts of functional questions. Instead, it has often drawn purely formal boundaries around what it might mean for Congress to “regulate” interstate commerce and has then allowed Congress free play within those boundaries.

    One result is an explosion of federal criminal laws justified solely on the basis of some minimal interstate element but which, if truth be told, could easily and adequately have been left to the states. Thus, the mandate’s opponents could ask that famous vegetable question: If Congress can force us to buy health insurance, could it also force us to buy broccoli? From that perspective, the line between “activity” and “inactivity” might be a bizarre, misshapen, mischievous, and needless constraint on federal commerce power, but it is at least a constraint.

    That said, the chief justice’s turn to the taxing power to uphold the mandate was more than a lawyer’s trick. Actually, that part of the opinion showed real common sense and economic insight. The point of the mandate is not to coerce folks to buy health insurance for the sake of coercing them to buy health insurance. President Obama opposed the mandate when he ran for office. But he eventually realized that the mandate is necessary to make other parts of health reform, such as the ban on refusing coverage for pre-existing conditions, work. Taxes often create economic incentives, and that’s what the mandate does. Under the Affordable Care Act, refusing to buy health insurance will not be unlawful, but it will also not be free.

    The chief justice also showed an awareness of his own role as a guardian of the Supreme Court’s integrity and legitimacy. For a slim majority of five Republican-appointed justices to have struck down the entire Affordable Care Act would have been a disaster, not just for health care in this country, but for the court’s essential reputation as an impartial arbiter of constitutional meaning.

    Perry Dane is a professor at the Rutgers School of Law – Camden.

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