3:23 pm Jun. 28, 2012
Rep. Jerrold Nadler is happy about John Roberts' decision to uphold the Affordable Care Act, but worried about how the chief justice arrived at it.
"I'm wondering what this does to the Commerce Clause and the ability of Congress to legislate in the future," Representative Jerrold Nadler told me this afternoon. "We don't know."
Roberts joined the four liberal justices in affirming that the individual mandate is a constitutionally permissible tax, but not before he agreed with the four conservative justices that the Commerce Clause didn't give Congress the authority to impose a mandate.
It was the latest in a series of decisions by the court that have placed scattered limits on the exercise of federal power, a scaling back that began in the mid-1990s, after nearly a century of expanding the constitutional definition of commerce.
If that precedent only applies when dealing with mandates, then it might not be much of a curb on federal power.
"Congress rarely regulates inactivity, so it may be that it doesn't really mean much, if that's what they're saying," said Nadler, who had yet to read the entire decision.
Nadler said he wasn't surprised that the court upheld the law, but he thought it would have been on Commerce Clause grounds, with the agreement of swing justice Anthony Kennedy. Instead, Kennedy took a more limited view of the government's power, joining the dissent with Antonin Scalia, Samuel Alito and Clarence Thomas.
Prior to his hostile interrogation of the government's attorneys during oral argument, some observers predicted Scalia might be inclined to uphold the law on Commerce Clause grounds, after he sided with the liberal wing in a case that affirmed the government's right to criminalize marijuana that was grown for personal consumption.
But Nadler wasn't surprised.
"Scalia seems to think you should have an expansive view of interstate commerce if Congress is doing something you like—banning marijuana—and a narrow view of interstate commerce if Congress is doing something you don't like," Nadler said. "I think his views are results oriented."
Nadler said health care would be an issue in this year's campaigns, but not the most important one, and that Democrats should embrace the debate as a way of communicating all the good things about the bill.
"I think you saw that for the first time in the president's statement a few minutes ago on T.V.," Nadler said. "I thought that was a very good statement. I thought that was a very good statement, and a very good beginning to the debate."
Nadler shrugged off the Republicans who said the decision would help the party repeat its big gains in 2010
"What's the phrase? I think they're whistling past the graveyard," he said.