So the Supreme Court finally gave us a decision on health care. And it was about as confused as it could possibly be. Here are some thoughts, somewhat organized, mostly scattered:
* Roberts’ opinion is particularly crazy. Not in its terminal result. It was always pretty obvious to me that the mandate IS a tax, and so it being upheld for that reason is perfectly reasonable. No, the crazy part is Roberts’ judgment of the Commerce Clause and Necessary and Proper Clause. He has decided, apparently, that the activity/inactivity distinction is a valid reason to reject the ACA. But he hasn’t decided to actually reject the ACA.
But, if we remember, the inactivity distinction was invented out of whole cloth just a couple years ago. I know there are a few true believers, but those people all seem to universally agree that this was just the wedge to start overturning the whole corpus of Commerce Clause law from the last 70 years. For most of the rest of the people, the distinction was constructed solely to allow overturning the ACA without stepping into the dangerous waters of directly taking on Wickard, et al.
That is to say: the ONLY point of this distinction was to allow overruling the ACA. It has very little meaning otherwise.
It’s truly bizarre that this stupid distinction, which was invented just to distinguish the ACA out of existence without actually implying an end to the broad Commerce Clause, has now been used to ALLOW the ACA but potentially undermine future cases.
* What does this mean for future cases? Well, it’s pretty unclear. There has been some talk that this was a sly bit of trickery from Roberts much like the wily John Marshall, who famously sacrificed individual decisions in order to cement a broader precedent in Marbury v. Madison.
That said, there are a couple reasons to reject this claim.
First, given what I just wrote above, I’m fairly sympathetic to the argument that the apparent 5-vote-majority for rolling back the Commerce Clause is all a bit of sound and fury without much real effect. There just aren’t likely to be many cases where Congress tries to ‘regulate inactivity,’ especially now that Congress knows they aren’t allowed to do it.
Second, the Marbury case involved giving up a completely irrelevant issue (whether a minor functionary got a job) in exchange for a very large issue (judicial review). In this case, the left gets to keep the single biggest piece of Commerce Clause legislation since the Civil Right Act. While I won’t be happy if the Court goes after some other things in the future, if it’s a forced choice about what to hold on to, the ACA is pretty huge.
* However, I don’t want to minimize the risk too much. While the inactivity distinction itself doesn’t really mean much, the WAY that Roberts went about affirming it is more worrisome. In effect, there is now a clear majority committed to the idea that the Necessary and Proper Clause is effectively meaningless. If they were to apply that logic in future cases, it could mean finding all kinds of spurious reasons (similar to the inactivity distinction) to roll back the Commerce Clause.
In effect, we might look back on Raich as a blip, and see the Health Care Cases as part of a broader effort going back to Lopez to limit Congressional power.
* Another concern is the Medicaid portion of the ruling. This was actually the most surprising bit to me. I thought it was a pretty open-and-shut case for allowing Congress to do this. So the resounding majority against it took me by surprise. Now, the requirement seems transparently possible to evade the requirement (by removing all funding in one line and then restoring it in the next one, conditional on implementing the policy). But presumably the Court would not be amused by such shenanigans.
If the Court is serious about this line of reasoning, it could imperil a lot of Congressional acts, which rely on the coercive force of removing federal funding to force states into action. We’ll have to see whether they are amenable to something a bit less nuclear but still forceful before we can really judge that.
* Finally, regarding EVERYTHING I’ve written so far, I want to stress that precedent (especially in cases like this that seem a bit muddled) isn’t necessarily all that important. The ruling here wasn’t so clear that it will force lower courts to do anything in particular. And anything that can be justified now could already have been found in other law if you were motivated enough to see it.
The case may end up mattering more for the way it draws lines and motivates people in future cases more than anything else. And we just really don’t have any good sense about how that will play out yet.