Courts

What Conservatives Have to Like in the Health-Care Ruling


Demonstrators who oppose the Affordable Care Act outside the Supreme Court building in Washington, D.C. on June 28, 2012

Photograph by Andrew Harrer/Bloomberg

Demonstrators who oppose the Affordable Care Act outside the Supreme Court building in Washington, D.C. on June 28, 2012

It’s hard to overstate how much was at stake as Chief Justice John Roberts began reading the Supreme Court’s decision on the health-care law Thursday morning: the fate of 50 million Americans who lack health insurance; possibly, President Obama’s own fate; the outcome of a reform battle that dates back 100 years; and the scope of Congress’s powers in the future. The 5-4 decision upholding the Patient Protection and Affordable Care Act was first and foremost a victory for the president and the law’s supporters. But it also stands as a victory of sorts for conservatives in the limits it sets on federal power.

The confusion as the decision was being announced—CNN and Fox News erroneously reported that the individual mandate at the heart of the law had been struck down—stemmed from Roberts’s unexpected approach to the case. He began by endorsing the argument made by the law’s opponents (and by justices Scalia, Thomas, Alito, and Kennedy) that the mandate violates the Commerce Clause of the Constitution.

“The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” he wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it”—in other words, Congress cannot compel people to buy health insurance.

But Roberts then went on to uphold the mandate under Congress’s taxing power, ruling that the penalty for not obtaining health coverage is tantamount to a tax and therefore allowable. This was not the primary, or even the secondary, argument for the law’s constitutionality advanced by Solicitor General Donald Verrilli when he argued the government’s case. Nevertheless, it was enough to save the law.

Most Republicans were confused and apoplectic about Roberts’s decision: Why would a chief justice nominated by a Republican president uphold a sweeping, bitterly contested law signed by the Democrat who succeeded him? The answer is that Roberts’s decision was conservative but not nakedly partisan. He adhered to the court’s traditional deference to the legislative branch, citing the 1895 opinion in Hooper v. California, which states that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” However, in justifying the mandate under the taxing power, Roberts found a far more limited construction than that followed by the liberal justices, which also serves to restrict Congress’s power to act under the Commerce Clause.

This latter power has been used to justify social welfare laws for generations and was supposed to justify the Affordable Care Act. That a majority of the court ruled that it isn’t a valid justification is an important precedent because it appears to limit federal power. Over the long term, this bodes well for conservatives eager to constrain the further growth of government. Still, Republicans aren’t taking much solace in the decision because most of them are focused on the near term.

Politically, the ruling helps Obama in three ways.

First, it preserves his major achievement. Obamacare may not be especially popular, but for it to have been struck down would have badly damaged Obama’s reelection chances by feeding into Mitt Romney’s main critique of him as a well-intentioned man who is simply not up to the job of governing. Second, having the imprimatur of the Supreme Court—and especially its conservative chief justice—should dispel the charge that the law is a monument to “liberal overreach” in a way that a 5-4 victory with the moderate Justice Kennedy as the deciding vote would not have.

Finally, the fact that the law was substantially upheld makes it much easier for Obama and Democrats to move on—and much harder for Republicans to repeal it—than if the mandate had been struck down and only portions of the law retained. This would have caused chaos and given a hypothetical President Romney and his party much more leeway to operate.

In his response to the court’s decision, Romney adamantly maintained his intention to repeal the law. The burden is now on him to explain what he would replace it with—and then to win the election, hope Republicans win the House and Senate, and find some way to get health-care legislation through. He’ll need only look to the current occupant of the Oval Office to see that this will be, though not impossible, an extraordinarily difficult thing to do.

Green_190
Green is senior national correspondent for Bloomberg Businessweek in Washington. Follow him on Twitter @JoshuaGreen.

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