The robust conservatism under John Roberts' liberal vote

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Ben Jacobs

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Chief Justice John Roberts’ opinion upholding most of the Affordable Care Act wasn’t as good for liberals as it appears.

The court left Obamacare mostly intact, only limiting its expansion of Medicaid by essentially making it optional for states. But Roberts embedded several strong conservative arguments in his tightly crafted opinion, which may be a long-term legal victory for small-government conservatives.

Roberts cast his decision in the cloak of judicial restraint, arguing early in his opinion that it "is not [the Supreme Court]’s job to protect the people from the consequences of their political choices.”

But he explicitly rejected the core of the Obama administration’s argument was that mandate was constitutional under the commerce clause of the Constitution. This clause allows federal government to regulate commerce “among the several states” and has been interpreted expansively over the past 75 years. In fact, until today’s decision, the Court had only twice found any limits on in the post-New Deal era. The four liberal justices thought the mandate was constitutional under this clause. Roberts did not. Instead, he found the mandate constitutional as a tax. This is a very important distinction.

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As Roberts wrote, “Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.”

At the moment, the commerce power empowers Congress to impose almost all economic regulations ranging from the minimum wage to fighting organized crime. Its scope was demonstrated in a 1941 case called Wickard v. Filburn, described by the four dissenting conservative justices as “the ne plus ultra of expansive Commerce Clause jurisprudence.”

In Wickard, the court upheld a verdict finding an Ohio farmer was found guilty of violating a federal law imposing a quota on how much wheat he could grow, even though he didn’t sell any of it and merely used it to feed his cows.

Roberts' argument, like the conservative argument in Wickard, makes a distinction between economic activity and economic inactivity. The idea is that the government can regulate growing wheat or buying health insurance if a citizen decides to so, but if a person decides not to grow wheat or buy health insurance, that’s none of the government’s business.

Roberts finds regulating inactivity to be almost a first step toward a police state, arguing:

“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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him."

Before today, only two cases decided since 1938, had found any limitations on Congress’s commerce power, both by 5-4 margins. These held that carrying a gun in a school zone and committing violence against women did not, when aggregated, have substantial effects on interstate commerce. Neither of these actions could be construed to be strictly economic decisions in the same way that deciding whether to purchase health insurance could be.

By finding the mandate to be “compelled commerce,” Roberts added a new limitation to the scope of the commerce clause and one that may impede Congress’s ability to enact other expansive regulatory schemes in the future.

William Brennan, the famous liberal justice of the Warren Court was famous for embedding language in his opinions that established favorable precedent for future cases. The words and phrasing he used in opinions that invalidated state laws prohibiting the distribution of contraceptives were the building block of the legal arguments used in Roe v. Wade.

By placing limitations on the commerce clause, Roberts may be pursuing the same kind of patient plan to limit federal power that Brennan once undertook to expand reproductive rights.