FAITH + IDEAS =: last updated 07/09/2012


Roberts Rules

Special Summer Edition

July 9, 2012                                    Volume 5 Issue 9

Faith +Ideas= an e-conversation with the faculty of Gordon College

By Timothy Sherratt

Chief Justice John Roberts took center stage at the Supreme Court last month to uphold the Affordable Care Act. With two tie-breaking votes, he sided with his colleagues who are usually perceived as ‘liberal’ to uphold the law, but with his colleagues usually perceived as ‘conservative’ to reject the government’s principal argument in support of it. Let me explain.

When the Obama administration defended the law in court last March, the government argued that the Constitution’s “Commerce Clause” gives Congress the power to require everyone to purchase health insurance—the so-called “individual mandate.” Massachusetts’ residents know about this first-hand. We have the same requirement in our health insurance law. In fact, our state law was the model for the federal law. “Romneycare” begat “Obamacare,” if you like.

The Commerce Clause empowers Congress to regulate commerce “among the several states.” Over time, this power has expanded. As long as there is a connection to interstate commerce, Congress’s acts are usually upheld. Not this time. Roberts and the four conservative-leaning judges concluded that a mandate to purchase health insurance gives Congress too much power.

Think about it this way: When people buy a company’s product, Congress can make laws to see that the transaction is fair. But it cannot make you buy that product in the first place. That’s the line that Congress crossed by requiring people to buy health insurance. As Roberts put it, “Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.”

So, the individual mandate was dead? Far from it. The Chief Justice found it constitutional by turning to the principle underlying separation of powers: if the Supreme Court can find a way to uphold a law, it should do so. And so, quoting Justice Oliver Wendell Holmes, Roberts wrote, “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

His reasoning is straightforward. Lawmaking is the domain of the people’s representatives, not the Court. The judges are not to strike down a law on the grounds of its wisdom as policy. They should only strike down a law that violates the Constitution. And a law that would be invalid based on one part of the Constitution may still be valid based on another.

In oral argument, the Government had also argued that the mandate could be understood as a form of taxation. As Massachusetts’ residents know, those refusing to purchase insurance under our Commonwealth’s mandate pay a penalty assessed on their state tax form. The Affordable Care Act works the same way, and Chief Justice Roberts ruled that “penalty” should not be equated to “fine” but to “tax.”

In other words, if you refuse to do something that carries a fine as a penalty, you still have to do the thing itself as well as pay the penalty. A tax is simply the government’s use of its powers to raise revenue.Under Roberts’ ruling, what the Affordable Care Act does is to tax the decision not to carry health insurance. And that is constitutional.

But is the Chief Justice’s decision wisdom or wizardry, constitutionalism or conjuring? Or prudence? I believe there is certainly a prudential dimension to the ruling. Had the law been struck down, state governments, insurance companies, hospitals, and most important, citizens, would have faced considerable, and expensive, uncertainty.

Yet Roberts’s decision also reflects a firm commitment to a limited federal government of distinct powers as the correct way to read the general contours of the Constitution. When Congress acts, it must justify its action. It can’t just say, “Hey, we’re a democratically elected government. We can do what the people sent us here to do.” No, it’s a limited government. And Congress is now on notice that the Court will police those limits.

This part of the ruling will raise new questions over old federal initiatives, everything from voting rights to environmental laws. It will resonate for years to come. As for the Chief Justice, he is a mere fifty-seven years of age; given good health he could still be serving twenty years from now.

Critics have been quick to suggest that Roberts’ ruling only changes the game. Will Congress just rely on their power to tax in place of their power to regulate commerce? Will every new individual mandate from the supporters of big government be framed up the same way as the Affordable Care Act to pass constitutional muster?

This is an easy question to answer. Just ask yourself, what politician do you know who wants to campaign on raising your taxes? Of course, the mandate’s survival may have cultural significance in the larger debate about the meaning of America. All Americans want government intrusion kept to a reasonable minimum. An unrestrained Congress is indeed “not the country the Framers of our Constitution envisioned.”

But I suspect Americans also want to live in a country where family and friends cannot be denied health insurance due to medical happenstance. Congress diluted the related risks and costs in a large pool of participants.

I believe Roberts’ ruling strikes the right balance. Once in a while, my liberty is everyone’s liberty and is worth the price of admission.

Timothy Sherratt is a professor of political science at Gordon College in Wenham, MA, and teaches American politics and Constitutional law. He and his family live in Rowley, MA. 

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Timothy Sherratt