By JR on Monday, July 02, 2012
Some concerns from the Left below
The Supreme Court’s decision in National Federation of Independent Business v. Sebelius—the healthcare cases—was a tremendous political victory for the Obama administration and, more importantly, the tens of thousands of Americans who will be saved from illness and death by the law. But make no mistake: the decision could also be a significant legal victory for the political forces committed to limiting the state’s ability to care for the weak and fragile among us.
In the hours after the health care decision was handed down, many commentators crowed over Chief Justice John Roberts’s statesman-like craft in putting together a moderate opinion that, in different parts, managed to unite the left and the right of the Court. They are half right. The opinion may be statesman-like, but it’s ultimately radical, endorsing a view of Congress’s power that had few, if any, takers until it was embraced by the Republican Party and its Tea Party flag-bearers. Indeed, it may even contain a seed that could unravel important benefits of the Affordable Care Act.
The immediate effect of the decision, of course, is that the law’s implementation can proceed. But on the one hand, Roberts, with four liberal justices, held that the individual mandate was constitutional as an exercise of Congress’s taxing power. On the other hand, Roberts joined the four conservative justices in stating that he believed that the same mandate could not be upheld under Congress’s Commerce Clause power. This should not to be overlooked. The Commerce Clause is the central plank of Congressional authority, employed to support everything from the Environmental Protection Agency to the civil rights laws. Flouting the usual rule that judges must avoid addressing unnecessary constitutional questions, Roberts made it clear that his new limitation on the Commerce Clause power was necessary to his opinion, and hence arguably binding on future courts.
In the second part of his opinion, Roberts and a coalition of six justices invalidated one aspect of the Medicaid expansion. Medicaid is one of many important “conditional spending” programs, in which Congress uses its spending power to give money to the states, but attaches conditions to the grant. The Court had never invalidated such a program on constitutional grounds. Yesterday, though, the Court held that although the federal government could condition the Medicaid expansion on the specific funding assigned to that expansion, it could not defund a state’s Medicaid program entirely if the state refused to expand the program. In effect, the Court viewed the states as akin to Methadone addicts, so dependent on their ongoing fiscal fix that the federal government had a constitutional obligation to hook them up.
Remember, there were two key points of constitutional controversy before the Court in the health care cases: first, whether the mandate is valid under the Commerce Clause, and second, whether the Medicaid expansion is a use of federal spending that improperly coerces the states.
But it is the spending clause part of the opinion that may have the more significant ramifications. While the Court has previously invalidated rules related to federal grants to states with strings attached on the ground that those strings were not articulated clearly enough, it has never before struck down a conditional spending effort as coercive—until yesterday. Apart from the puzzling question of how a non-natural entity such as a state can be “coerced,” Roberts’s explanation of this holding is unclear. Provided a federal grant is large enough and has continued for long enough, he might be read to say, the states acquire a right to it in perpetuity.
The reason this portion of the opinion is ground for concern is that it opens the door to extensive new litigation by the states to fight off regulatory mandates in other policy areas, from education to highway maintenance. The federal government often uses conditions on federal grants to pressure states into complying with important legal and policy mandates. Now it’s unclear how many of those conditions are good law. Precisely because it cannot be clearly understood, Roberts’s opinion invited new challenges by the states and new judicial decisions unraveling the regulatory net that keeps states in compliance with many important mandates on everything from civil rights to the environment.