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How to Read the Health Care Opinion

Progressive relief today is much too close to "Thank God he didn't hit me." The Supreme Court, on its own previously announced principles, had no business coming so close to invalidating the Affordable Care Act.
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Law happens on a field of pain and death. For all their dry distinctions and sonorous tone, judges' opinions set people free and send them to die, grant them security or leave them deprived.

This was acutely true when the Supreme Court ruled on the Affordable Care Act, the most important piece of social legislation in perhaps two generations. The ACA is flawed, but it moves tens of millions of people from insecurity toward reliable care. It also makes our crazy system of funding health care somewhat more rational. Striking it down would have been the most egregious piece of judicial politics since the Supreme Court went to war against FDR's New Deal -- and lost -- in the mid-1930's.

Anyone who cares about fairness and good sense in social policy, then, should count today a victory -- as most progressives are doing.

At the same time, we should be clear on this: our relief is much too close to "Thank God he didn't hit me." The Supreme Court, on its own previously announced principles, had no business coming so close to invalidating the ACA.

Justice Roberts's opinion makes him a hero for a day to many liberals. It also moves the Court, at a stately pace, toward an aggressively right-wing view of the federal government's power. Moreover, it keeps the Court at the very heart of issues where it does not belong. For all its obvious appeal, it is self-aggrandizing and far more radical in its reasoning than in its outcome. That reasoning may have serious consequences down the road.

Roberts accepted that Congress cannot require individuals to purchase health insurance under its power to regulate commerce among the states. The power to regulate commerce, he argued, does not extend to the power to mandate purchases. On his logic, if Congress had this power, it could require people to buy cars or healthy food -- the infamous broccoli example.

This may not matter much in practice, because Roberts upheld the requirement to purchase insurance under the separate Congressional power to tax, by interpreting as taxation the fee for not purchasing health care. It is very hard to imagine a law Congress would ever want to pass that could not survive this scrutiny. Therefore, the ruling on the Commerce power may be mainly symbolic. For nearly 20 years, the Court's conservatives have insisted on limits to the Commerce power while not doing much of consequence with those limits. This opinion may be another of those rhetorical rulings.

That said, consider the way the Roberts opinion envisions the world. We are governed by politicians who want to force us into gym memberships and stuff broccoli in our faces. The democratic process is not enough to protect us from such palpably unpopular laws. We need the Supreme Court, wielding the Constitution, to protect our liberty to spend our money where we like, and not elsewhere.

To accept that these are urgent constitutional concerns, you need a very mistrustful sense of government. You also need to see consumer liberty as a touchstone of American freedom. For almost eighty years, constitutional law has assumed that Congress and state legislatures can be trusted to make economic judgments (better trusted than courts, anyway) under democratic scrutiny, and that individual economic freedom is not a constitutional liberty. To be swayed by the Roberts opinion, you need to squint at the world in quite the opposite way.

Purely as a country boy from West Virginia, I am libertarian enough to like the idea that Congress can't make me buy things from corporations. As a student of constitutional law, though, I am obliged to say that Roberts's argument has force only in a Tea Party view of government and personal liberty, and that the opinion's rhetorical embrace of Tea Party constitutionalism should worry people who think complex problems like health care unavoidably require complex -- and politically possible -- solutions. Congress adopted the individual mandate to deal the insurance companies into the political bargain, as conservative reformers had long urged. If not for the saving thread of the taxing power, Roberts's opinion would have left no solution to the health-care crisis that was both politically viable and constitutionally permitted. To repeat, the Court had no business coming so close to gutting the law, and the fact that it did so, and is being celebrated for withholding the knife, is a mark of how far the public has accepted aggressive judicial review of legislation that should not be constitutionally suspect.

The other major part of the Roberts opinion held that the federal government cannot withhold Medicaid funds from states as a punishment for failing to adopt the ACA's expansion of Medicaid eligibility to 133% of the federal poverty line. Roberts argued that the threat to withdraw Medicaid funding is "a gun to the head" that impermissibly coerces the states. The idea is that the federal government cannot directly tell the states which laws to pass, and giving them an offer they cannot afford to refuse amounts to dictating their Medicaid legislation.

For many decades, Congress has been influencing state legislation with fiscal carrots and sticks -- offering money to fund policies it likes, withholding funds when states don't pass desired laws. If you wonder why every state sets the drinking age at 21, it's because they would lose federal highway funds if they set it lower. The Court has previously made a few muted noises about possible limits to this use of Congress's "spending power" to influence states, but this is the first time it has actually set a limit to that power. This is a new, and potentially big, roadblock to federal policy-setting. It intercedes the Court between Congress and the states and guarantees future challenges to spending legislation. How much it will matter to the ACA's anti-poverty effect depends on how many states will simply refuse to expand Medicaid, now that they know they can't lose their existing funding for doing so. The number may be quite large, which means more people without health coverage and more people crossing state lines in search of more generous care -- never a good solution, and a large part of the reason Congress aimed for uniformity.

Bottom line: Justice Roberts saved the constitutionality of a humane and centrist piece of social legislation. Gutting it would have been radical, and it is astonishing that four justices would have done so. (I'll post later on the dissents.) He also confirmed the view of the Constitution that made the attack on that law seem plausible. That constitutional view is itself radical. It affirms that the Court belongs at the heart of this issue, and guarantees its future role in similar controversies. Progressives should not be grateful for this.

Every law student learns, on the first day of constitutional law, a brilliant victory that Chief Justice John Marshall achieved in the touchstone case of Marbury v. Madison. While giving his opponents what they wanted -- declining to award a federal patronage position to one of his fellow Federalists -- he announced the Supreme Court's power to invalidate federal legislation on constitutional grounds. He hugely expanded the Court's power, moved it in the direction of his constitutional vision, and did so in a case where those most likely to oppose him were mollified by the result.

John Roberts was an outstanding law student. He has not forgotten his early lessons. The rest of us should not forget them, either.

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