Below is today’s column in USA Today on the health care decision. Though I support President Obama’s effort to establish health care, I have always opposed the individual mandate as a violation of federalism principles. What is fascinating is how some challengers have heralded yesterday’s decision as a victory of federalism. As shown below, I do not take that view.
The Supreme Court’s blockbuster health care ruling caused a spasm of celebration and recrimination around the country Thursday as the Affordable Care Act was upheld on a 5-4 vote. In reality, the case was never really about health care but federalism — the relative authority of the federal government vs. the state.
I support national health care, but I oppose the individual mandate as the wrong means to a worthy end. Indeed, for federalism advocates, the ruling reads like a scene out of Julius Caesar— a principal killed by the unseen hand of a long-trusted friend. Brutus, in this legal tragedy, was played by Chief Justice John Roberts.
The opinion starts out well. Roberts defends federalism by ruling that the administration exceeded its authority under the commerce clause. Just as many readers were exalting in the affirmation of federalism, however, Roberts struck a deadly blow by upholding the individual mandate provision as an exercise of tax authority. Federalism rose and fell so fast it didn’t have time to utter, “Et tu, Roberts?”
Roberts joined the four liberal justices in upholding the law. He clearly believed that the law was constitutional, and he refused to yield to the overwhelming public pressure. Indeed, he must have known that people would view this as a betrayal of states’ rights, but he stuck with his honest view of the Constitution.
None of that will diminish the sense of betrayal. After all, Brutus acted for the best reasons, too. The health care case was viewed as the final stand for federalism. If the top court could make a federal issue out of a young person in Chicago not buying health insurance, it was hard to imagine any act or omission that would not trigger federal authority. Roberts agreed that this was beyond the pale of federalism: “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.”
But no sooner had Roberts proclaimed his love for federalism than he effectively killed it. Roberts held that the individual mandate still fell squarely within the taxing authority of Congress. If so, all those “broccoli” questions asked by Roberts and other justices simply move over to the tax side. If Congress can “tax” people for not having health insurance, how about taxes on people who don’t have cellphones (as Roberts asked)? Just as there was no clear limiting principle in the commerce clause debate, there is a lack of such a principle in the tax debate. Instead, Roberts simply says the individual mandate is supported by a “functional approach” that has long allowed federal taxes to “seek to influence conduct” by citizens.
Roberts did rule that states could not be threatened with the loss of Medicaid funds if they didn’t want to be part of the program. That was an unexpected protection for the states facing threats from Congress. But this still leaves citizens of every state subject to the penalties of the federal government for failing to get insurance. Moreover, in mandating the right to opt out, Roberts rewrote the law, precisely what most justices didn’t want to do. Before the law was enacted, Congress refused to add an opt-out provision. After the justices complained in oral arguments that they did not understand the massive law, this judicial amendment could increase health care costs and undermine the uniform national character of the program.
Given such problems, President Obama might have been better off losing before the court than accepting this victory from the hands of Roberts. In the end, the court’s decision could be viewed as a success only to the extent that a crash landing is still considered a landing.
It is hard to see who will be the ultimate winner from this decision. But the biggest loser is federalism. Roberts lifted it up only to make it an exquisite corpse. In that sense, the decision reads like the funeral speech of another character in Julius Caesar. To paraphrase Mark Anthony, Roberts came to bury federalism, not to praise it.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
June 28, 2012