A surprise?

The following contribution to our post-decision symposium on the health care cases is written by Erwin Chemerinsky. Erwin is the founding dean and distinguished professor of law at the University of California, Irvine School of Law, with a joint appointment in Political Science. His areas of expertise are constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, most recently, The Conservative Assault on the Constitution (October 2010, Simon & Schuster), and nearly 200 articles in top law reviews. 

Should we be surprised by the Supreme Court’s decision to uphold the individual mandate and most of the Affordable Care Act?   From the perspective of constitutional doctrine, the Supreme Court’s decision follows from 75 years of unbroken precedents.

Since 1937, no major federal social welfare law has been declared unconstitutional as exceeding the scope of Congress’s authority. From the late 19^th century until 1936, the Supreme Court struck down many progressive federal laws – such as a prohibition of child labor and a requirement for a minimum wage – as being beyond the scope of federal power.  But that changed dramatically in 1937, with the Supreme Court proclaiming the need for deference to congressional power in providing social programs and regulating the economy.

If the Supreme Court had taken the approach urged by the four dissenters and invalidated the entire Act, it would have been something that had not been seen since the Supreme Court struck down key pieces of the New Deal in the 1930s.

Nor from the perspective of constitutional doctrine is the Court’s reasoning surprising.  The Supreme Court found that the minimum coverage requirement – the so-called individual mandate – is essentially a tax.    Individuals must either have health insurance or pay a tax.   In every way, it functions as a tax; it is collected by the Internal Revenue Service and is a small percentage of income or a flat rate.     Since 1937, not one federal tax has been declared unconstitutional.

The result was best forecast by a question asked by Justice Sonia Sotomayor at the oral argument.  She asked the attorney representing the states challenging the law, Paul Clement, why couldn’t Congress raise everyone’s taxes to pay for health care and then give an exemption to those who already have health care?   Of course, Congress could do this and that is exactly how the individual mandate functions.   It is true that President Obama never called it a “tax,” but many members of Congress did, and labels certainly are not decisive in constitutional law.

Why then the surprise?   In part, it is because Chief Justice Roberts joined with Justices Ginsburg, Breyer, Sotomayor, and Kagan to create the five person majority to uphold the law.  I can think of only one case in which Roberts joined with the four liberals to create a majority (Jones v. Flowers in 2006).   Over his seven years on the Court, Roberts has virtually always been with the conservatives in ideologically divided 5-4 decisions.

Also, what made the ruling surprising is that it did not follow predictions based on partisanship.  Every Republican member of Congress voted against the Affordable Care Act.   Every lower federal court judge appointed by a Republican President, with two exceptions, voted to strike down the individual mandate.  Every lower federal court judge appointed by a Democratic President, with one exception, voted to uphold the individual mandate.  Had the Supreme Court followed that pattern, it would have been 5-4 to strike the law down.

There are disturbing aspects to the decision that should not be overlooked.   First, although he found that the individual mandate was constitutional as an exercise of the taxing power, Chief Justice Roberts still expressed the view that it would not be permissible under the commerce power.   Five justices took the position that there is a distinction between Congress regulating activity as opposed to inactivity.   It is unclear how often this will matter, but the flaw in the argument is that everyone is engaged in economic activity when it comes to health care.  Individuals either are purchasing health insurance or they are self-insuring.   Congress was regulating the latter to ensure that health care is more likely available for all.

Second, the Court struck down the penalty on states that do not comply with the increased requirements for Medicaid coverage.   The Court said that this was unduly coercive.   But no state has to participate in Medicaid.   It may be a difficult choice to turn down federal money, but there is a difference between facing a hard choice and being coerced.   Moreover, the Court offered no criteria for how to determine when strings on grants become too coercive and this will open the door to challenges to many federal programs.

It is tempting and easy to reduce so many of the Court’s decisions to the ideology of the justices.   The Court’s decision powerfully shows that is not always the case.   It now truly is the John Roberts Court.