November 15, 2015

The Roberts Court has made its mark in judicial history, although not in a way any believer in good government would admire. A recent issue of The Nation contained reviews of its most controversial decisions in an article entitled "The Case Against the Roberts Court: A Decade of Justice Undone." Included were District of Columbia v. Heller, (guns), Citizens United v. FEC, (money in elections), Shelby County v. Holder, (voting rights), Burwell v. Hobby Lobby (religious rights of corporations), along with restrictive decisions on access to federal courts, among others.[79]  The significance of three of the decisions was graphically portrayed in charts. Gun homicides per capita in the U.S. are more than four times the nearest developed nation; the ratio to the UK is about 25:1. "Outside group" spending on elections was about 3.5 times greater in 2012 than in 2010, the year of Citizens United, and the ratio of conservative to liberal spending in 2012 was about 2.5:1.[80]  Since Shelby County, legislation restricting voting has been introduced in forty-one states. The first illustrates the uncivilized dimensions of the gun problem, which Heller made worse. The other two measure the results of the decisions.

The Nation included a review of the Court’s more liberal decisions, including recognition of same-sex marriage and rejection of efforts to invalidate the Affordable Care Act ("Obamacare"). However, the principal challenge to the ACA, National Federation of Independent Business et al. v. Sebelius, illustrates another problem: the Court’s misuse of authority. A majority, speaking through Chief Justice Roberts, held that the individual mandate — the requirement to purchase insurance — could not be sustained under the Commerce Clause.

Justice Roberts acknowledged an impact on commerce: "People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce." In this case that means that those who fail to purchase health insurance drive up the cost for everyone else. "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." True; what is the problem? "That is not the country the Framers of our Constitution envisioned."

Why does he think that? "James Madison explained that the Commerce Clause was ‘an addition which few oppose and from which no apprehensions are entertained.’ The Federalist No. 45, at 293." Madison did say that, but he did not, as Roberts seems to imply, state that the Clause was innocuous and must not be used vigorously. Never mind: "While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have ‘always recognized that the power to regulate commerce, though broad indeed, has limits.’ Maryland v. Wirtz, 392 U. S. 183, 196 (1968)." The issue there was the reach of the federal minimum wage law; several states and a school district argued that the law could not extend to schools and hospitals operated by the states or their subdivisions. The opinion in Wirtz indeed recited the rule about limits, but did not apply it, holding that, under the Commerce Clause, the minimum-wage rules applied to the state entities. Justice Roberts’ restrictive reading of the Commerce Clause was in aid of states’ rights, so his citation of Wirtz is doubly inappropriate.

However, ignoring the holding and relying on the quote out of context, the Chief Justice concluded: "The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, ‘everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.’ The Federalist No. 48, at 309 (J. Madison)." However, Madison was describing the actions of state legislatures, not Congress; the Constitution, including the Commerce Clause, had not yet been adopted. Ignoring that, Roberts continued: "Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government." That appears to be a convoluted way of saying that the government may forbid, but may not compel, conduct, at least under the Commerce Clause. Interestingly, Roberts contrasted the limited power of the Federal Government with the broader "police power" of a State. "Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States." He approved of that despite the legislature’s habit of "drawing all power into its impetuous vortex."

Under the Affordable Care Act, the "commerce" is the health care system, of which insurance is a part, and purchasing insurance is part of that, all of which Justice Roberts acknowledged. He simply thinks that the prohibit/require dichotomy must be maintained to prevent the Government from reaching too far . However, he decided that, simply by calling the penalty a tax (and thereby removing it from the Commerce Clause and placing it under the taxing authority) it was possible to uphold it, even though the penalty is a lever to force people to buy insurance: "Although the payment [of the penalty] will raise considerable revenue, it is plainly designed to expand health insurance coverage." Although "the statute reads more naturally as a command to buy insurance than as a tax," it can be upheld as a tax. Pretending that the penalty is a tax is especially odd after declaring, in another part of the opinion, that it is not. However, it has this advantage for Justice Roberts’ theory: "it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity." Therefore Congress may not command purchase of insurance and assess a penalty for failure to do so, but it may tax the failure to do so, even though the "tax" really is a "command to buy insurance."[81]

Opinions such as this do not engender confidence.
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79. My comments on the named cases are here: Heller 7/6/08, Citizens United 2/6/10, Shelby County 7/1/13 and Hobby Lobby 7/15/14.

80. The ratios are approximate; I’ve scaled the bar charts as well as I can.

81. I discussed the opinion at greater length on 7/15/12.