Why Did Roberts Do It? To Save the Court.

The law, lawyers, and the court.
June 28 2012 3:51 PM

Why Did Roberts Do It?

To save the court.

(Continued from Page 1)

Next—and here I must take my lumps—the opinion rejects the argument I advocated in Slate, that the obscure Anti-Injunction Act requires the case to be dismissed on jurisdictional grounds. Nonetheless, the rest of the opinion embodies the spirit of my earlier argument. Like John Marshall in Marbury v. Madison, the chief justice uses the ACA case to shore up the court’s legitimacy, throw a few sops to his ideological confreres, and deal at least a glancing political blow to the president while avoiding outright confrontation. Like Marbury before it, National Federation of Independent Business v. Sebelius is (to again borrow from historian Robert McCloskey) a “masterwork of indirection.”

Roberts concludes that the individual mandate exceeds Congress’s Commerce Clause power because that clause only allows Congress to regulate existing commerce, not to force unwilling citizens into commercial transactions. This section of the opinion is ideological catnip for libertarians but will have only minor real-world effects since Congress rarely mandates private purchases. In the weakest part of the decision, Roberts argues that the mandate exceeds even the expansive scope of Congress’ power to “make all Laws which shall be necessary and proper for carrying into Execution” the powers granted by the Constitution. Even though Congress thought the mandate was literally necessary to the Act’s other insurance provisions (which are concededly regulations of commerce), Roberts concludes that the mandate is somehow not proper.

But all of this turns out to be just warm-up material. Thirty pages into his opinion, Roberts suddenly pirouettes and holds that the mandate can be upheld as an exercise of Congress’ power to levy taxes. (This will surely give Tea Partiers some succor—and some sound bites: President Obama tried to pull a tax over on the American people, and the Supreme Court called it for what it was.) 


Lower courts—even ones that upheld the mandate as a regulation of commerce—resisted this conclusion, and the justices appeared unimpressed by it at oral argument because Congress chose to label the mandate a penalty, not a tax. And Roberts admits that it looks more like a penalty. Indeed, this entire portion of the opinion, unlike what comes before, reads as if Roberts’ heart is not fully in it: It is dutiful, more like a brief written for a client than a judicial broadside fired from the hip. But it makes all the right moves: The mandate operates like a tax. Labels are not dispositive when it comes to sources of congressional power. And, most important, the court has a duty to construe statutes so as to rescue them from unconstitutionality—a duty that, as Justice Louis Brandeis understood, is grounded in the need to preserve the court’s institutional legitimacy. From every perspective—political, institutional, and even legal—the tax-power holding is a brilliant compromise.

The rest of the opinion, striking down Congress’ threat to eliminate all Medicaid funding to states that refuse to expand eligibility, is the most surprising. Although based on the common sense notion that Congress shouldn’t be allowed to bribe states by making them offers they can’t refuse, it fails to provide a yardstick by which to measure such coercion. My hunch is that this holding will be read narrowly and will not imperil the many “cooperative federalism” programs that already exist, from No Child Left Behind to Title IX to the Clean Air Act. But it is only a hunch.

In any case, the individual mandate was the main event. And it survives, thanks to the vote of John Roberts. We may never know whether Roberts initially sided with the challengers and then “switched in time,” like a famous Justice Roberts of the past, or whether he always intended to save the ACA. Either way, the country—and the court—should be happy he did.


Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Students Aren’t Going to College Football Games as Much Anymore

And schools are getting worried.

Two Damn Good, Very Different Movies About Soldiers Returning From War

The XX Factor

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.


Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

Why a Sketch of Chelsea Manning Is Stirring Up Controversy

How Worried Should Poland, the Baltic States, and Georgia Be About a Russian Invasion?

Trending News Channel
Sept. 19 2014 1:11 PM Watch Flashes of Lightning Created in a Lab  
  News & Politics
Sept. 20 2014 11:13 AM -30-
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 20 2014 3:21 PM “The More You Know (About Black People)” Uses Very Funny PSAs to Condemn Black Stereotypes
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.