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Like him or hate him, Roberts undoubtedly made a professional, and not personal decision today. Surely, his opinion was a difficult one to write. And just as assuredly, whether or not the scope of the federal government expanded at the margins, America did not turn into the USSR today, Obama is not like Hitler, the second civil war is not about to begin, and Roberts is not a radical activist liberal judge.
In fact, small government conservatives should have a lot to like from the opinion of Justice Roberts.
The Roberts Opinion
First, Roberts gives a general overview of the ACA outlining two key provisions: (1) the provision requiring Americans to maintain “minimal essential” coverage, which imposes a “shared responsibility payment” penalty to be collected in the same manner as a tax (IE: its collected by the IRS at tax time) on those who do not comply with the requirement, and (2) the Medicaid expansion provision, which requires the states to expand the number of people eligible for Medicaid assistance. State that do not comply risk the loss of federal funding.
Roberts begins with discussion of the common understanding that the federal government being one of “enumerated powers.” In other words, the federal government is granted specific things that the CAN do. Anything power that is not SPECIFICALLY granted to them by the Constitution is outside of their authority and should be left to the States.
The Individual Mandate
On the issue of the individual mandate, Roberts makes it a specific point not to uphold the provision under the commerce clause or the necessary and proper clause. This is a deliberate decision that should make many “small government” conservatives happy. In essence, Roberts drove a stake in the ground in front of those who continue to use the commerce clause and the necessary and proper clause as justification for almost every expansion of the federal government.
Without the Commerce Clause, Roberts artfully upholds the mandate under the power to “lay and collect taxes” by conceptualizing the “penalty” provision as a tax since the penalties are to be collected by the IRS without any other consequence.
While Scalia et al… in the dissent are bursting veins for this “non-textual” reading of either the ACA or the Constitution, the long-term effect of this ruling will be a precedent that actually contracts the federal government’s authority because of Robert’s rejection of the use of the the two most oft cited justifications for extending its authority.
The Medicaid Provision
On the medicaid provision, Roberts took his attack on the expansion of federal power by setting a precedent against the unbridled use of federal mandates.
In simple terms, the federal government is given specific powers. If they want to do something that exceeds those powers, they mandate that States do something. States then have a “choice,” whether or not to do it. If they choose not to do what the federal government wants, they don’t get money. If they do, they do. In this case, like many others (I.E., provisions of No Child Left Behind, Clean Air Act, and thousands of others…)
Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan does not comply with the Act’s requirements, the Secretary of Health and Human Services may declare that “further payments will not be made to the State.” Roberts compared the use of mandates in this manner to putting a “gun to the head” of states.
The Roberts opinion upheld the constitutionality of the law only because the Act did not remove existing medicaid funding for states that fail to comply with the new provision.
The Long-Term Legacy
While the SCOTUS is theoretically not a ‘political’ institution, Justice Roberts, like him or hate him, made a brilliant, artful, and long-term move. In the short-term, he upheld the ACA, making those on the left so drunk with joy that they would not stand up in protest as he took an ax to a part of the Constitution that has tormented small government conservatives since the New Deal.