What the Conservatives Won in Roberts’ Ruling

Chief Justice John Roberts was against the Affordable Care Act before he was for it — its most disputed component, anyway — reported longtime court-watcher Jan Crawford of CBS. She says that not only was there another 5-4 decision in the offing, poised to strike down the health care mandate had Roberts not made his deft pirouette, but that the other three conservative justices plus Kennedy — especially Kennedy, who was "relentless" — wanted to throw out the entire law.

So what made Roberts switch (and there is evidence that he did; see sidebar later)? He clearly angered the dissenting justices — Scalia, Alito, Thomas and Kennedy — whose view of Roberts' twists and turns were unusually insulting, saying he carried "verbal wizardry too far, deep into the forbidden land of the sophists".

The most persuasive speculation for why Roberts switched sides is that he was worried that too many 5-4 splits, with the same predictable groupings of justices, had won the Court a reputation for advancing a right-leaning political agenda, and that the Court had lost too much stature in the eyes of the public as a result. Roberts had to worry that his Court would be tarred as one of the worst ever, but more important, the Court, which has neither police force nor army to enforce its decisions, would lose the most important power it does have — its legitimacy in the eyes of the people.

But what he gave with one hand — allowing the government to go forward with the mandate under its 16th Amendment's taxing power — he took with the other.

He begins his opinion (found here) with a magisterial excursion through two centuries of constitutional thought on the limits of federal power, citing the Framers of the Constitution and a number of landmark cases. "The Federal Government 'is acknowledged by all to be one of of enumerated powers'" he quotes from 1819's McCulloch v. Maryland and "can exercise only the powers granted to it". He reminds us of the 10th Amendment which reads, "The powers not delegated to the United States by the Constitution...are reserved to the States respectively, or to the people". Roberts is zeroing in on Section 8 of Article I which lists the specific powers the federal government does have, one of which permits Congress only "To regulate Commerce...among the several states", where "among" has commonly been viewed as meaning between rather than within the states.

He writes, "The Framers thus ensured that powers which 'in the ordinary course of affairs, concern the lives, liberties, and properties of the people' were held by governments more local and more accountable than a distant federal bureaucracy" and that this arrangement "protects the liberty of the individual from arbitrary power". And further, "Federalism secures to citizens the liberties that derive from the diffusion of sovereign power". He even finds in the Alexandria Gazette of July 5, 1819 an article by Chief Justice John Marshall that applies to the unique and unprecedented as if he were writing about the health care mandate today: "The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional".

Thus does Roberts set the stage for disallowing the mandate to slip past

"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority". It would "give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal government...The Framers gave Congress the power to regulate commerce, not to compel it."

The question is what this tightening of the Commerce Clause will result in going forward and, even more seriously, whether it will invite a slew of challenges that seek to strike down even the most entrenched laws that took a more lenient interpretation of the statute.

A perennial bête noire for Republicans is the federal minimum wage law, which we'll consider as an example. Republicans reliably wage war every time raising the minimum comes up in Congress. Their position is that raising the wage destroys jobs in small businesses unable to pay more, especially jobs for teenagers, who are usually hired at the minimum. The counter-argument is that any increase of low wages is immediately spent into the economy, giving it a boost, and that "wage ladders" that stratify employees typically cause businesses to raise wages of workers earning just above the minimum, improving further lives.

But it is not hard to imagine that, emboldened by the enforcement of the Commerce Clause by the Roberts court, the right of the federal government to impose a minimum wage on all 50 states will be an early challenge, calling it a violation of the 10th Amendment, quoted above. Never mind that the law has been on the books for almost 75 years (the Fair Labor Standards Act of 1938). Never mind that 90% of other countries have such a law. Never mind that our minimum, at $7.25 an hour, is well below the poverty level. Never mind that, although states are free to pass their own minimum wage law — and 18 states have rates higher than the federal level out of concern for poverty — there are the rest of the states which might leave it at no law at all, giving employers the freedom to pay however little they want to those who would become increasingly desperate Americans.

Liberals may be jubilant about the Court's allowing the key funding provision to go forward, but the Court's strong decision in behalf of state sovereignty could lead to the dismantling of a number of federal laws of importance to the United States as a nation.