Who Really Won Today? Two Views On Roberts And The Commerce Clause

I had planned to stay out of it. Like every other health care journalist I’ve been following today’s Supreme Court decision, but I have no special expertise in this area and I hadn’t planned  to write about it. But then I became interested in a slightly different angle of the story. An article in Slate by Tom Scocca speculated that although Roberts may have joined the liberal wing of the court and saved the Affordable Care Act, this may actually have been a means to a much larger end, undermining the regulatory powers of Congress under the Commerce Clause.

Writes Scocca: “By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause…” According to Scocca, this represents “a substantial rollback of Congress’ regulatory powers.” He continues:

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

Again, this is way our of my area of expertise. So I asked a friend, a former Supreme Court clerk, and, as you will see, a decided liberal, what she thought. Here is her response:

This is, foremost, a big win – or at least avoidance of a big disaster – for Obama & the Democrats (and the country, imho). There were four votes to throw out the ENTIRE ACA – every single element of health care reform – making the biggest single achievement of the Obama administration a nullity, and dooming this country to who knows how many more years without any serious health care reform. We dodged a bullet!

This ruling, upholding the ACA, is the one clear outcome of this case. What result Roberts’ interpretation of the Commerce Clause will have in the future, however, is unclear. It’s true that he endorsed this new idea that “the Commerce Clause doesn’t make people doing nothing enter into commerce,” but I haven’t seen any examples of how that concept could be applied in other cases. (It didn’t really apply in this case, either, because everyone uses the health care system at some point, but whatever.)

– The reality is that, whatever Roberts said today, there are 3-4 consistent votes to strike down almost any Democratic/liberal effort, and to uphold almost any conservative effort. (Someone could say that the same is true in reverse for the court’s liberals.) For the far right on the court, federal power is expansive when you want to stop someone from growing pot, and it’s limited when you want to control people selling guns. I don’t think Roberts’ language today really changes that dynamic. It’s true, if Romney is elected and gets to add another conservative to the Court, they will use Roberts’ language to invalidate all sorts of liberal stuff, but if the language wasn’t there, they would just use something else (or create new precedent).

Bottom line: The result is good news, and that’s what matters.


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