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Go Home Is Health Reform Safe Against Judicial Conservatives?

JONATHAN CHAIT FEBRUARY 14, 2011

Is Health Reform Safe Against Judicial Conservatives?

BY JONATHAN CHAIT

One of the striking things about Roger Vinson's ruling striking down the Affordable Care Act -- which I appraise rather critically in my latest TRB column -- is that there are three distinct legal rationales for the law, and Vinson's ruling finds a way to reject all three of them. One rationale is Congress's authority to tax, which Vinson rejects by deciding the penalty on people who go without health insurance is not a tax. The second is the Commerce Clause, which he rules out by concocting a distinction between activity and "inactivity," the latter of which he claims Congress can't regulate.

And then the third is the Necessary and Proper clause. The Constitution gives Congress authority to enact any laws necessary and proper to execute its others enumerated powers. Charles Fried notes that conservatives on the Supreme Court have previously interpreted this clause, sensibly, to allow Congress to carry out its authority as the clause reads:

Fried supported Roberts and Alito as well and said in an interview he does not believe either of them would be inclined toward "such a departure from standard Commerce Clause jurisprudence."

He added, "I don't see Roberts as going for this tea party stuff."

Fried pointed, as others have, to a case from last term. The chief justice, in U.S. v. Comstock, agreed that the Necessary and Proper Clause gave the government the right to to detain sexually dangerous federal prisoners even after their sentences were completed, although even the power to imprison is not explicit in the Constitution.

Roberts assigned the ruling to Breyer and joined the broadly written opinion in full, something neither Kennedy nor Alito was willing to do, even though both agreed with the outcome.

I think it's obvious that any ruling based on legal precedent will uphold the Affordable Care Act, and not by a 5-4 margin. Keep in mind that striking down the law is a kind of inside straight that requires 5 justices to each reject all three possible legal rationales for the individual mandate, and each rationale has a fairly strong basis in precedent. The only question is whether the justices will follow precedent or just decide to strike down a law they don't like.

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9 comments

I would like to think that you will be correct, Jonathan.

- liberalref

February 14, 2011 at 10:26am

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It's not called "judicial following-precedent", now is it?

- GSpinks

February 14, 2011 at 11:05am

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Chait - your confirmation bias is becoming severe. You can fight the effects of cognitive dissonance. Focus on logic and facts 1. ObamaCare is not a tax. FACT, just read the bill 2. Inactivity is not the same as activity. FACT, look up the definitions in the dictionary 3. Necessary and Proper only applies to enumerated powers. FACT, See 1 & 2, and read the constitution Your mental health should not be ignored.

- mr_rationale

February 14, 2011 at 11:49am

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The poorly-written program known as rat is back. It never considers that it has the ultimate confirmation bias. Matthew 7:3 would be instructive to this program. Heritage, can you program the relevant passage in? But it is much to preoccupied with lusting after bank notes and endlessly checking the market indices to pay attention. Morality is for wimps. This program exhibits a debased Nietzscheanism and is hugely Randian. JC will sometimes take the best case he can find among conservatives and argue with it, instead of deflating a weak argument or constructing a straw man. Could you ever imagine rat doing that if time lasted for an eternity? Fairness is for wimps, too. Hit below the groin is rat's mantra. Always. Such fairness is at the antipodes from this program, whose first resort is to invoke mental illness. And if the polarities were reversed on this matter? Then rat would argue the other way, because it is totally cynical and manipulative and Machiavellian.

- liberalref

February 14, 2011 at 12:01pm

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I am surprised to learn from mr_rationale that under the Internal Revenue Code, the government can assess taxes but not penalties or interest. Wait until the government finds out about this.

- Nusholtz

February 14, 2011 at 12:09pm

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Time was, say before December 2000, that I would have been equally confident that the supreme 9 would not "just strike down a law they don't like." My confidence hasn't really recovered from that blow however. Renquist appeared at the time to be a principled conservative, but somehow hacked together a decision that had no basis in law that I can see. Why would the Roberts court not do the same for PPACA?

- IowaBeauty

February 14, 2011 at 12:51pm

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- The following from Ezra Klein is another nail in the coffin of the GOP's assault against lack of personal responsibility without discussing how. where and why it happens in this century. [Hint] Conservatives pretend a modern society can ignore, avoid and deny the costs and the benefits even though we tend to share (take-steal) in a post industrial world. But the right is unwilling to propose the Amish life as the example of what their plan for the good old days resembles. We can undo health care reform and not bother with modern policy challengers in a modern fashion, and aim to live just like folks did in the 19th Century.

“Health care is unlike other commodities,” Walter Dellinger, who served as solicitor general to Bill Clinton, told the Senate Judiciary Committee last week. “There is nothing else in our economy where an individual who has made no preparation can go in and get $1 million of goods and services passed on to them at taxpayer expense.” That means it struggles with free riders: people who would have society pay for their care, rather than pay for it themselves.

- michaelg

February 14, 2011 at 1:12pm

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ir-rational: First dictionary I looked in says a tax is "a compulsory financial contribution imposed by a government to raise revenue." Given that the purpose of the fee in question is to offset the cost to the government of providing health care to people who don't have insurance, tell me again how the penalty or fee imposed on those without insurance is not a "a compulsory financial contribution imposed by a government to raise revenue." As for inactivity vs activity: we passed this rubicon a long time ago. The federal government encourages me to spend my money on, amongst other things, children, houses, hybrid cars, and charity, by "punishing" me with higher taxes when I do not. Explain how a tax credit for my children is not a penalty to those who choose not to, or cannot, have them?

- IowaBeauty

February 14, 2011 at 2:18pm

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A passage in my above comment should read "much too preoccupied," (not "to"). I like to be note-perfect, so I winced when I reread my remarks.

- liberalref

February 14, 2011 at 3:09pm

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