Making Sense of the Obamacare Ruling

Supreme Politics

Anyone who honestly thinks that the Supreme Court is above politics holds a pleasantly naive understanding of the law and political science.  This includes Justice Scalia to the extent that he's serious when he says that the Court doesn't consider politics (although I think he's just attempting to maintain the useful myth that the Court simply cannot be affected by politics).  Ideally, the Supreme Court would be completely free to stand firm on rules of law and bend the public to those standards.  However, as I believe I have discussed earlier, all rights (and indeed all laws) are only upheld by the Court to the extent that 1) the Court has a reason to believe that it should uphold those particular rights (or laws), and 2) the Court will not face a catastrophic loss of legitimacy as a result of upholding those rights (or laws).  The fact that our rights can be subject to infringement by political pressure certainly justifies removing the Court from that political pressure, and that is why the Supreme Court is the least political of all the branches.  But the reality is that if the Congress and the President can enact laws and enforce them with broad public support and over the objections of the Court, then all rule of law is forfeited for a time.  Some instances of this are President Jackson simply ignoring the judicial branch and forcing the Native Americans to relocate to Oklahoma and President Lincoln simply ignoring the judicial branch and unilaterally lifting the right to writs of habeas corpus.  Both of these instances ushered in fairly long eras of near complete powerlessness of the judicial branch.  The Court must occasionally consider compromising on the existing rules of law in order to maintain its institutional legitimacy and, thereby, its power and the rule of law generally.

On the other side of examples, the Court famously made a determination to preserve its institutional legitimacy, and therefore its power, in the "switch in time to save nine."  This occurred during the New Deal era, and regardless of one's opinion of those policies, they enjoyed broad public support at the time (as well as currently, to be frank).  The Court however repeatedly struck down provision after provision.  President Roosevelt challenged the Court by floating the idea of simply increasing the number of justices on the bench, allowing Roosevelt to nominate all the new members, and all of whom would support his provisions.  In order to shore up the legitimacy of the Court and avoid such a drastic interference with the Judicial Branch, Justice Owen J. Roberts switched his voting to support the New Deal provisions.  While some still express dismay over this change in course (the most notable being Justice Thomas), the fact of the matter is that this switch preserved the legitimacy of the Court, allowing it to issue such controversial rulings (at least for the time) as Brown v. Board of Education and Roe v. Wade without suffering the kind of debilitating loss in public support that would presage an era in which the rule of law is conspicuously absent.  (Another notable example is when Chief Justice Marshall refused to uphold claims to land by an individual who bought the land from a certain Indian tribe, in clear contradiction to the rules of property law.  He refused to follow the "rule of law" because its not the province of the Court to call into question claims to annexed land by the United States as that would set up the Supreme Court as having the power to de-legitimize the entire political underpinnings of the nation, of which the Court is a part.)

Applying these considerations to the ruling on Obamacare, there is a clear case to be made that Chief Justice Roberts "switched" in order to preserve the legitimacy of the Court, thereby preserving the rule of law generally and protecting the people from even greater tyrannical acts which could be contemplated by the President and his various "Czars" or even Congress.  Public support of the Court is at historical lows, due in large part, no doubt, to President Obama's shameless attacks on the Court.  Another defeat of the Democrat agenda by the Supreme Court during an election year would subject the Court to a level of political attack which could further erode its legitimacy.  Just imagine of the Court suffered from such low public support as Congress currently does.  However, by handing this victory to the Democrat agenda, the Court can avoid the criticism that it's rulings are ideological rather than based in good legal reasoning.  While it can be discouraging to see the Court succumb to the attacks of a President, one must bear in mind the reality that the independence of the Court depends upon the support of the people.  The solution to this problem is not in reforming any particular institution, as there is no way to escape political realities, but to hold respect for the Court individually and collectively, politically punishing those who encroach on the Court's independence.  Only then can we guarantee the Court's independence and thereby enjoy the rule of law.  At any rate, Chief Justice Roberts has expressed sensitivity in the past regarding the legitimacy of the Court, and I believe it would be naive to think that these political calculations did not play a significant role in Roberts' decision.  However, it would be foolish, shortsighted, and a grave disservice to the intellect of Roberts to end our analysis here. 


Limiting the Commerce Clause

The dominant issue in the debate over Obamacare was the scope of the Commerce Clause.  The history of the Commerce Clause is interesting in that it has gone through various periods of interpretation, ranging from authorizing expansive powers to authorizing only limited powers.  Under Marshall and for some time thereafter, the Commerce Clause was interpreted expansively - its only significant limitations were to be found in the political process.  This limitation worked to restrict the powers of the Federal government for quite a time.  However, as a laissez-faire economic theory emerged and was integrally connected to natural law legal theories, the Commerce Clause began to be restricted by the Court rather than just through the political process.  These restrictions became even more ingrained as the interests of the industrialist powers in the North and the Southern interest in limiting the powers of the Federal government after Reconstruction converged.  However, as discussed above, the Great Depression spawned a desire for expansive powers under the Commerce Clause which were eventually upheld.  The famous case which exemplifies this switch during the New Deal era is Wickard v. Filburn.  In Wickard, the Court upheld a law which sought to fix the price of wheat and included a provision which restricted wheat farmers to growing only a particular amount of wheat.  If a farmer exceeded his allotted amount, even for home consumption, he would be subject to punishment.

The Constitution authorizes Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  U.S. Const. art. I, § 8, cl. 3.  Therefore, any law passed under this 

authority must exercise a power which is classifiable as a "regulation."  The power to regulate in the context of the Commerce Clause was defined by the Court in Gibbons v. Ogden as the power to "prescribe the rule[s] by which commerce is to be governed."  Gibbons v. Ogden, 22 U.S. 1, 196 (1824) (emphasis added).  The Court also stated in Gibbons that commerce "is regulated by prescribing rules for carrying on that intercourse."  Id., at 190 (emphasis added).  In accordance with the expansionary effect of the Necessary and Proper Clause, the Court declared that "[t]his power [to regulate interstate commerce] . . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the [C]onstitution."  Id., at 196.  As recognized by the Court, those limitations which "are prescribed in the [C]onstitution, id., include those limitations "which inhere[] in the [C]onstitutional grant" of power itself.  NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 30 (1937).  Thus, Congress' authority under the Commerce Clause is to lay out the rules according to which individual behavior must conform while engaging in interstate commercial activity and is limited to that power only.

As such, the Commerce Clause recognizes a clear national interest in interstate commerce, or the national market, and grants Congress the power to regulate individuals' activities in relation to the market pursuant to political and public policy interests.  The Court elaborated on the power to regulate interstate commerce in Jones & Laughlin, stating that "the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement'; to adopt measures 'to promote its growth and insure its safety'; 'to foster, protect, control and restrain.'"  Id., 301 U.S. at 36-37 (citations omitted).  However, Congress' power under the Commerce Clause is still subject to the inherent limitation discussed above - the power to regulate is still only the power to "prescribe the rule[s]."  Gibbons, 22 U.S. at 196.

A second intrinsic limitation on the power granted to Congress by the Commerce Clause was delineated in Gibbons when the Court concluded that "commerce 'among the several States,'" id., at 189, includes commerce which is intermingled with multiple States, or "commerce which concerns more States than one."  Id.  Therefore, should actions under the broadly defined "commerce" cross the boundaries of a State or affect another State, that action is said to be "commerce among the several States," or "interstate commerce."  See id.  Thus, a second intrinsic limitation on Congress' powers under the Commerce Clause is that the activity over which power is being exercised must be in the set of activities classified as "interstate commerce."

In Jones & Laughlin, the Court reasoned that "[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control."  Jones & Laughlin, 301 U.S. at 32.  The Court has recently elaborated on this rule in Lopez by stating that "the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce."  Lopez, 514 U.S. at 559 (emphasis added).  An individual's activities which in themselves do not have a substantial effect on interstate commerce may nonetheless be regulated by Congress if those activities do have a substantial effect when aggregated with like activities of many other individuals.  See Wickard, 317 U.S. at 127-128.  Therefore, Congress can regulate activities which substantially affect interstate commerce, including an individual's activity which does not substantially affect interstate commerce in itself, so long as that activity, when considered in the aggregate with other similar actors, does substantially affect interstate commerce.

The Court in Raich declared that it "need not determine whether respondents' activities . . . substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for so concluding."  Raich, 545 U.S. at 22.  However, the Court has rejected as too attenuated a line of reasoning which "follow[s] the but-for causal chain from the initial occurrence of violent crime . . . to every attenuated effect upon interstate commerce."  United States v. Morrison, 529 U.S. 598, 615 (2000).  Thus, there is a proximate causation requirement connecting the underlying act passed by Congress to the substantial effect on interstate commerce.  As the Court explained in Lopez,

the scope of the interstate commerce power ‘must be considered in the light or our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local.’ 

Lopez, 514 U.S. 557 (citing Jones & Laughlin, 301 U.S. at 30).  Therefore, while it is only necessary for the Court to find that Congress had a rational basis test for concluding that particular intrastate activities have a substantial effect on interstate commerce, the rational basis test is limited by the principle that the line of reasoning must preserve a realm of power over commerce exclusively to the States.

The reservation to the States of an exclusive realm of power over commerce has been a recent development, achieved by requiring that the intrastate activities being regulated by Congress must be non-economic.  See, e.g., Lopez, 514 U.S. at 559-560.  In establishing this requirement, the Court observed that they had "upheld a wide variety of congressional Acts regulating intrastate economic activity . . . . [T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.  Even Wickard . . . involved economic activity."  Id., at 559-560 (emphasis added).  In Morrison, the Court reaffirmed its analysis in Lopez, saying that "a fair reading of Lopez shows that the noneconomic . . . nature of the conduct at issue was central to our decision in that case."  Morrison, 529 U.S. at 610 (emphasis added).  In Raich, the Court defined "economic" as "'the production, distribution, and consumption of commodities.'"  Raich, 545 U.S. at 25.  Thus, the growing of a product, e.g. wheat as in Wickard and marijuana as in Raich, can therefore be considered economic because that activity can be classified as "production."  Hence, Congress' power to reach intrastate activities which have a substantial effect on the national market only applies to intrastate activity which is itself economic activity.

The Obamacare ruling seems to further solidify the emergence of a new era of Commerce Clause jurisprudence in which the Court limits the scope of Congressional power by recognizing an exclusive realm of power over commerce for the States.  In the Obamacare ruling, Justice Roberts emphasized that the Congressional power to regulate commerce "presupposes the existence of commercial activity to be regulated.  National Federation of Independent Business v. Sebelius, S.Ct. at 16 (2012).  "If the power to 'regulate' something included the power to create it, many of the provisions in the Constitution would be superfluous."  Id.  Furthermore, Commerce Clause precedent "construing the scope of the commerce power . . . have one thing in common: They uniformly describe the power as reaching 'activity.'"  Id.  "Wickard has long been regarded as 'perhaps the most far reaching example of Commerce Clause authority over intrastate activity,' Lopez, 514 U.S., at 560, but the Government's theory in this case would go much further."  Id., at 17.  "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 . . . empower Congress to make those decisions for him."  Id., at 16.  "Accepting the Government's theory would give Congress the . . . license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government."  Id., at 18.  "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."  Id.  "The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.  Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."  Id., at 20.  Thus, the Court has extended the trend to moderate Congress' power under the Commerce Clause by enforcing an exclusive realm of power over commerce for the States; an individual mandate on a State level is perfectly Constitutional, at least from an analysis considering the power to affect commerce.

John Roberts' John Marshall Moment?

What Roberts gives with the one hand, he seems to take with the other.  In a move that has infuriated Conservative partisans, Roberts upheld the individual mandate as a valid exercise of Congress' powers under the Tax and Spend Clause.  Roberts' ruling inevitably recalls a similar ruling early in our Nation's history, Marbury v. Madison, and I suspect that Justice Roberts would like his ruling to be analogous to Justice Marshall's in Marbury.  A brief explanation of Marbury may therefore inform our analysis of the Obamacare ruling.

"In 1800, the incumbent President, John Adams, lost in a hotly contested election. . . . Jefferson ultimately prevailed, based on a vote in the House of Representatives.  Adams was a Federalist, and the Federalists were determined to exercise their influence before Republican, Jefferson, took office. . . . On February 13, 1801, Congress enacted the Circuit Judge Act, which reduced the number of Supreme Court Justices from six to five, decreasing the opportunity for Republican control of the Court.  The Act also eliminated the Supreme Court Justice's duty to serve as circuit judges and created 16 new judgeships on the circuit courts. . . . On February 27, 1801, less than a week before the end of Adams's term, Congress adopted the Organic Act of the District of Columbia, which authorized the President to appoint 42 justices of the peace.  Adams announced his nominations on March 2, and on March 3, the day before Jefferson's inauguration, the Senate confirmed the nominees. . . . A few commissions, including one for William Marbury, were not delivered before Jefferson's inauguration.  President Jefferson instructed his Secretary of State, James Madison, to withhold the undelivered commissions.  William Marbury filed suit in the United States Supreme Court seeking a writ of mandamus to compel Madison, as Secretary of State, to deliver the commission.  A writ of mandamus is a petition to a court asking it to order a government officer to perform a duty."  Justice Marshall was placed in an awkward position.  On the one hand, he himself was a Federalist, generally striving to solidify the Federal Government's power after the disastrous experiment with the Articles of Confederation.  There was undoubtedly a large amount of political pressure from his peers to hamper Jefferson's efforts to implement the Republican agenda by forcing him to appoint their man to the position.  On the other hand, "Marshall had no choice but to deny Marbury relief: the Jefferson adminstration surely would have refused to comply with a court order to deliver the commission.  In addition, there was a real possibility that Jefferson might seek the impeachment of the Federalist justices in an attempt to gain Republican control of the judiciary."

Therefore, Marshall "betrayed" is peers and handed Jefferson and the Republicans a victory.  However, what he seemed to give with one hand, he took away with the other.  Madison would not be compelled to deliver the commission to Marbury, but in order to reach that conclusion, Marshall laid the groundwork for actually advancing the Federalist agenda.  First, he protected the Court from political interventions by Jefferson, thereby assuring that the Federalist interpretation of the Constitution would persist in the Court for some time.  Second, he established the principle of judicial review of both legislative and executive acts, simultaneously bringing Jefferson and the Republicans under Federalist scrutiny in the Court while expanding the power of the Federal Supreme Court - it would have been very easy to extend the English jurisprudential system in which no court has the authority to invalidate an act of the legislature.  If there is an analogy between the Obamacare ruling and Marbury, it will be in one of these regards: 1) protecting the independence of the Court; 2) advancing a particular political agenda while seeming to advance its opposite; and/or 3) expanding the power of the Federal Government.

Protecting the Independence of the Court

This was discussed to some extent in the section above, entitled Supreme Politics.  However, here the point is slightly different that merely the legitimacy of the Court.  Here, the point is to keep the Court free from the interfering hands of politicians in either the Legislature or the White House.  The two points are certainly related - to the extent that the Court is viewed as legitimate, there is less incentive for politicians to meddle with the Court, but if the Court is viewed as illegitimate, there is greater incentive for politicians to meddle.  Therefore,  protecting the legitimacy of the Court will tend to protect the political independence of the Court.  Such political independence is clearly desirable both to protect the principle of separation of powers (as a desirable form of government in itself) and to prevent "the mob" from determining the outcomes of legal proceedings.  Therefore, the Obamacare ruling has at least this parallel with Marbury - that the Chief Justice took an unexpected action in order to preserve the independence of the Court, thereby preserving the separation of powers and the rule of law.

Advancing a Particular Political Agenda While Seeming to Advance Its Opposite

First, Justice Roberts may have freed the Court for some time from the blatant attacks of President Obama and some of the Democrats.  By giving them this victory, their critique, that the Court has been "hijacked" by a bunch of conservatives who are intent on advancing their own political cause, has been blunted.  They can no longer credibly argue that the Court is at the mercy of conservative ideologues.  The potential parallel to Marbury here is that Justice Roberts will now be free to make decisions which are informed from his own political views without being demonized in any credible fashion, just as Marshall preserved the Federalist bent in the Court.  However, the concern is that Roberts has actually tipped his hand that he succumbs to pressure.  Therefore, my particular concern is that Roberts hasn't actually freed himself to make rulings without being attacked, but has actually invited greater interference, but how this plays out has yet to be seen.  At any rate, I do believe that this was part of Roberts' calculation.

Second, Justice Roberts may have actually brought the Congressional power to Tax under greater scrutiny.  Just as the above consideration, how this plays out has yet to be seen.  However, Roberts may have followed in his mentor's footsteps.  Justice Rhenquist successfully ushered in the new era of a more limited power under the Commerce Clause by succinctly describing the scope of that power in a manner which was both consistent with precedent but also laid the groundwork enforcing clear limits.  Here, Roberts may have done the same with the Tax power.  He has fairly succinctly described the power of Congress to Tax, but has also described some limiting principles.  The concern here is that by allowing Congress to tax people for merely existing, the so-called limiting principles are far from being truly restrictive.  But, like I said, how this plays out has yet to be seen.  My hope is that Justice Roberts has done precisely this - upholding a far-reaching tax, but laying the groundwork to advance his political philosophy which would ultimately limit that power to tax.  I suspect that this will not play out as I hope because, as indicated above, it would seem that in order to meaningfully enforce the restrictions indicated, the Court will have to either outright reject the present ruling or to make such distinctions as will make clear that the ruling does NOT mean that Congress can tax people for merely existing.  

However, there is at least one more interpretation, and one which I think is more likely that the previous two.

Expanding the Power of the Federal Government

The final potential parallel with Marbury is that Justice Roberts is actually a closet Federalist, i.e. his true political philosophy is one which seeks to secure and even extend the power of the Federal government.  While I have no doubt that Roberts is more supportive of a powerful Federal Government than the other "conservative" justices, I would like to think that he hasn't actually staked out a long-lasting stance where he sides with the "liberal" justices.  However, this may be the case.  He may have announced himself to be a big-government conservative.  Thus, in order to advance his political philosophy which would allow for actions by the Federal Government on many issues, he simply had to support the power of the Federal Government to act on these matters in general, and that the true limitation is to be found merely in the political process.  From what he has written in his opinion, this may well be the best explanation.    

Therefore, I suspect that this last possibility is most probable, and that Roberts does see his ruling as being analogous to Marbury.  Roberts hopes to have preserved the independence of the Court, thereby allowing him to issue rulings with greater freedom from the attacks of politicians.  Roberts has staked out his position as a big government conservative, allowing for a large amount of Federal action on various matters, like Justice Marshall.  Along this line, Roberts views his ruling as actually advancing his political views by 1) allowing the federal government to act on a plethora of issues, and 2) exposing President Obama to the attack of being an oppressive taxer and hopefully ushering in a rather immediate political sensibility more attuned to Roberts' own big government conservatism.  Indeed, the day may come, not too long from now, that Republican partisans will rely on the powers that Justice Roberts has recognized, and that those Republicans will, in the long run, have to thank Roberts.  At least, I suspect that that is Roberts' own view, and that is how I make sense of the Obamacare ruling.