Construction Literary Magazine

Fall 2020

The Republic Lives!: The Supreme Court Upholds the Affordable Care Act, Part II

The Republic Lives!: The Supreme Court Upholds the Affordable Care Act, Part II

Photograph via the AP

Editor’s note: This is Part II of a discussion about the Supreme Court’s landmark opinion that largely upheld the Affordable Care Act. To read Part I, click here.

Anthony Resnick

Sam, I’d like to push back one more time on your negative view of the Court’s Commerce Clause ruling. My take is in a way more cynical and in a way more optimistic than yours: more cynical in how I view the Court generally, but more optimistic in what I think the ramifications of Thursday’s ruling will be. I agree, again, with Adam Serwar at Mother Jones when he says:

Not to be entirely cynical about it, but Supreme Court Justices are lords of the realm. They can rule how they want, and a different lineup on the court—say one with a few more Democratic appointees—could reject [Roberts’] reasoning entirely.

If President Obama is re-elected and has a chance to replace one or more of the Court’s conservative justices, the conservative attack on the Court’s Commerce Clause jurisprudence will, at least for some significant period of time, be over. If Romney wins and has a chance to replace one or more of the Court’s liberals, that attack will accelerate. Both of those statements would be true even if Roberts had—as Justice Ginsburg suggests he should have—decided the health care case without even reaching the Commerce Clause issue.

Now, my read on this would be very different had Roberts come down as he did on the Commerce Clause issue and voted to invalidate the law. Such a ruling would have been tremendously important not so much for its legal reasoning but for the normative shift of the Court striking down such a major piece of legislation. What’s the point of having a more narrow reading of the Commerce Clause if the Court is too timid to use it? That’s why I don’t quite buy the “John Roberts is an evil genius“ narrative that seems to be developing on the left, the idea being that Roberts’ motivation was to strengthen the Court’s legitimacy while chipping away at the Commerce Clause so that the Court could completely gut the Commerce Clause later. If gutting the Commerce Clause were Roberts true aim, he would have simply struck down the law. The precedent that would have set, both in jurisprudence and in how the Court perceives its relationship to the other branches, would have been tremendous. The Court’s public reputation would have taken a hit, but its power would have increased by a great deal and future Congresses and presidents would be chastened in how ambitiously they could legislate. This was not a case where Roberts sought to advance the conservative legal agenda by protecting the legitimacy of the Court; it was a case where Roberts had to choose between the conservative agenda and the legitimacy of the Court, and he chose the latter. As Dahlia Lithwick put it, “[Roberts] threw himself on his sword for the court in a way that would have made William Rehnquist proud.”

Don’t get me wrong, I’m sure that if the conservatives on the Court ever have five votes (perhaps even including Roberts) willing to further erode the reach of the Commerce Clause, they will cite Roberts’s opinion in this case as justification for doing so. But they won’t need this precedent and won’t be attacking the Commerce Clause because of this decision; they will be attacking the Commerce Clause because they are conservatives and this is what they do.

Sam Ennis

While I still think that my concerns are warranted and that Chief Justice Roberts made a very calculated play in weighing in on the Commerce Clause (more on that below), I think you’re right that I failed to acknowledge that Roberts did something pretty courageous yesterday. Let’s take a step back here. Roberts, appointed to the Court by George W. Bush, has never been considered anything but an extreme corporate conservative. He obviously didn’t think that the ACA was salvageable under the Commerce Clause, or the Necessary and Proper Clause, which served as the government’s one-two punch as to its constitutionality. As you pointed out, he also could have simply joined the conservative majority and given himself free reign to restrain congressional power forever; or, even worse, he could have given the opinion to Scalia and allowed him to overturn Wickard v. Filburn. What’s more, doing so was likely far more in line with his own legal and personal philosophies. And yet, he saved the day by upholding the ACA as a tax: an argument that, while legally sound and perfectly defensible, was basically an afterthought until the decision was announced. Why?

Commentators have been quick to opine that Roberts took this surprising step so as to preserve the Court’s institutional legitimacy in the wake of Citizens United and prevent an entire generation from losing faith in its impartiality and role in our constitutional system. In doing so, keep in mind what Roberts was faced with: an election that could be swung permanently toward his (presumed) candidate of choice if the ACA was overturned, an opportunity to limit the expansion of government forever (or at least for the foreseeable future), and a way to demolish the most anathema legislative scheme to conservatives since the Cookies and Puppies for Dying Children Act of 1997 (not a real law). The fact that he was willing to uphold the law anyway is a strong testament to Roberts as the steward of the Court and to his own personal fortitude. Also, for those conservatives who are screaming that this was horse trading or pure politics, remember, the tax argument is totally constitutionally legitimate: it’s not like Roberts said, “This is unconstitutional, but whatever, it’s upheld anyway.” The fact that he may have allowed other concerns to influence his decision does not make him a liar or less of a jurist; it makes him a pragmatic leader who refused to adhere rigidly to ideology, and for that, he will always have my respect.

That said, a response to your points on the Commerce Clause. You’re right that if Obama wins and gets another SCOTUS appointee, the attacks on the Commerce Clause are a moot point (and, conversely, that if Romney wins/appoints, the attacks will accelerate). But I disagree that if Roberts was intent on gutting the Commerce Clause, he simply would have overturned the ACA in a sweeping opinion. As Justice Ginsburg suggested, the doctrine of “constitutional avoidance” is a black letter legal principle under which courts “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” This basically means that wherever possible, courts should avoid ruling on issues of constitutional law that are not themselves dispositive to the opinion. The Chief Justice is well aware of this: three years ago, Roberts wrote an opinion that narrowly decided a challenge to the Voting Rights Act, specifically declining to take up the conservative plaintiffs’ call for the Court to declare the VRA inherently unconstitutional.

The ACA opinion was a prima facie example of a situation ripe for constitutional avoidance: one would expect the opinion to say “this is constitutional as a tax. We decline to address the question of whether the individual mandate is permissible under the Commerce Clause or the Necessary and Proper Clause.” Boom: constitutional avoidance 101. And yet, Roberts’ opinion worked backward, explicitly rejecting the government’s Commerce Clause argument even though it had virtually nothing to do with the ultimate holding. I cannot believe that this bizarre exercise was anything other than Roberts drawing a line in the sand against future expansion of permissible action under the Commerce Clause (unless you want to get really petty and say that he was just trying to save face to his conservative allies). I don’t at all think that Roberts punted on the Commerce Clause issue: rather, I think that he realized that in this moment, it was worth more to him and to the Court to uphold the ACA, while still signaling his opposition to an expansive reading of the Commerce Clause in the future.

Finally, one last point in what I know is an excruciatingly long post: my main concern with this invitation to fight back against the Commerce Clause is not with the Court, which hears about 1.1% of the 8,000 plus cases that petition for SCOTUS review each year. My concern is with the lower courts, where the vast majority of these battles will be fought, and without any hope of a liberal Supreme Court majority (if Obama gets another nominee) to do anything about it. Due to a historic level of Republican intransigence in opposing Obama’s judicial nominees, as well as Obama’s frustratingly slow nomination process, Obama has put far fewer judges on the federal bench than his past few predecessors. If Romney were to win the election, particularly if he somehow obtained a Republican Senate majority, he would find himself with wide leeway to pack the lower federal courts with conservative ideologues that could seize on Roberts’s Commerce Clause language and do far more damage than the Court itself ever could.

Thus far, we’ve focused almost all of our legal analysis on the Commerce Clause issue; and yet, some argue that the Court’s accompanying Medicaid ruling was almost as significant. Sally, can you explain what exactly is going on regarding Medicaid after the Court’s ruling?

Sally Rodriguez

Sam, I understood about 85% of what you wrote, but it was incredibly interesting. I think Roberts’s rationale is a fascinating question, and I too have to give him some respect if for nothing else than his unpredictability.

The part of the law that the Court invalidated was a big Medicaid expansion that was meant to address the gap between current Medicaid income thresholds and the income level of people who will be able to afford policies sold by the state exchanges. It’s hard to force people to buy insurance if they truly can’t afford it (even with subsidies)—hence the Medicaid expansion. To give a sense of the relative income levels we’re talking about, though it differs across states, to qualify for Medicaid people generally have to make under or just above the federal poverty level and have less than $2,000 in assets. If that sounds poor, consider this—the 2011 poverty level was just under $11,000 for a single person and just over $22,000 for a family of four; it’s about as current as the minimum wage. Not to mention the fact that childless adults are typically not eligible for Medicaid. So, the bottom line is that Medicaid leaves too many poor out, and it needed to be expanded to fit the paradigm of universal coverage (unless we were to expand the subsidies for private coverage, but that’s essentially the same idea—it’s all federal money).

Now that the court has ruled that states can’t be forced to expand Medicaid, we have a scenario where states will have to make a choice. And let me quickly dispel the idea that the Fed was pushing states into expanding with no help—the federal government, via the ACA, will pay 100% of additional costs from the expansion for several years. Eventually, states would have to take over the bill, but in the short-term it’s nearly free, and there’s where you get much of the federal spending associated with the ACA. So, now we wait and see if states will continue on with expansion or put a stop to it. Even though it amounts to sticking your nose up at a federal handout to cover poor people, I can still see some governors initially promising not to expand Medicaid. But on the other hand, health providers will push hard—that gap group of low earners is where most of their uncompensated care goes. I predict a lot of pressure on states to continue with the expansion; many Republicans will scream about federal spending, but it’s much harder for Republican governors to take such a hard line. If they don’t expand, they will have a vulnerable, uncovered population on their hands as well as some very pissed-off providers. I really think most states will still expand because of this pressure. Anthony, what do you think? What do you think the dynamic between policymakers on the Hill and state governors will be like?

We’ve also been hearing the mandate called a tax on the middle class. Let me be clear: on this point, nothing has changed within the ACA. It was always a tax, people! If you choose not to buy insurance, you pay a tax penalty, it’s pretty simple (if you still don’t get it, just ask Romney!). If the right gains traction with this nonsense about a new middle class tax, it’ll only be because people never understood the law to begin with.

Another big source of confusion is how the law will affect health care costs; I think if the public had a better sense of this, the law might be more popular. The ACA draws upon our best conventional wisdom; if we cover everyone, costs go down for everyone. If people are not covered, society as a whole is picking up their tab when they inevitably need care (see the story of one of the plaintiffs in this case who went bankrupt with debt that included medical bills). If everyone is in insurance risk pools, premiums go down. The whole point of mandating coverage is to lower the cost of health care for the average person. Perhaps the Obama administration failed to hammer this point home because they were too excited about public support for things like the pre-existing condition exception.

Anthony Resnick

The politics of whether Republican governors will accept the Medicaid expansion are as fascinating as the policy implications of their refusing the money are horrifying. I was originally going to respond to this question by sharing Speaker Pelosi’s optimism that no state will opt out. It’s simply too good a deal for the states, there’s no reason to turn it down other than politics. Denying coverage to some of their most vulnerable citizens for political reasons seems too craven even for Tea Party conservatives. And then I read that Tea Party hero Rick Scott, governor of Florida, had come out and said he will indeed have his state opt out of the Medicaid expansion.

Of course, there’s a big difference between saying your state will opt out of the Medicaid expansion and actually opting out. The Medicaid expansion doesn’t become effective until January of 2014. By that point, President Romney may have already signed “Restoration of Liberty and Free Enterprise Act” (or whatever absurd name is given to the repeal of Obamacare), and the Medicaid expansion will be over before it started. Therefore, there is a huge risk and little reward for Republican governors in conservative states to come out and say they will implement the Medicaid expansion—they could engender the rage of the Tea Party by merely saying they would implement a piece of Obamacare without ever garnering the benefits of expanded coverage and federal funding that would come from actually implementing the policy. If President Obama is reelected and it becomes clear that the ACA, including the Medicaid expansion, will indeed become the law of the land, it’s hard to imagine Republican governors denying federally-funded coverage to the nearly-poor simply so they can salvage some small victory in the war on Obamacare. But while the fate of the law remains uncertain, the political calculus requires that they continue to give no quarter and denounce all aspects of Obamacare in the strongest terms possible. I think Kevin Drum in Mother Jones has it right: “If Romney wins, it’s probably moot. If Obama wins, expect opposition to the new rules to cool down over time. By the time Obamacare kicks in in 2014, the blusterers may be having second thoughts.”

Sam Ennis

The Republican governors’ “principled” refusal to accept Medicaid expansion isn’t at all surprising: numerous states with Republican governors have similarly opted not to operate health care exchanges more or less out of spite toward the Obama administration, despite the fact that red states almost uniformly have far higher levels of uninsured patients than blue states. This type of damaging petulance isn’t cabined to politicians, though: sources are now saying that the reason that the Court’s four conservatives were so furious at Justice Roberts for changing his initial vote and upholding the law that they simply refused to even acknowledge the existence of his majority opinion in their joint, unsigned dissent. Incredibly, rather than challenging or rebutting Roberts’ opinion in a way that, ya know, would further constitutional discourse and develop the law (which I am to assume is the Supreme Court’s job), the conservatives instead basically just told the majority, “Screw you guys, we’re going home.”

This type of nonsense is similarly unsurprising: some have pointed to Republicans’ public disrespect toward the Clinton and Obama administrations as evidence that Republicans inherently just don’t accept the legitimacy of a Democratic presidency. Why should the Justices act any differently with regards to their opinions? Well, putting aside for a moment my aforementioned point that THE SUPREME COURT IS SUPPOSED TO ENGAGE IN LEGAL DEBATE, DAMMIT, the conservatives’ obstinacy may have severely limited what I argued earlier was Chief Justice Roberts’s attempt to crack down on the Commerce Clause. Although the four liberal Justices joined in portions of the Roberts opinion, they obviously did not agree with him that the individual mandate was unconstitutional under the Commerce Clause and did not sign that part of the ruling. Had the conservatives voted with Roberts at least with regard to those provisions, that portion of the opinion would have received five votes and become law, sending a powerful message that the Court would be far more suspicious of Commerce Clause arguments in the future and giving the conservatives a springboard from which to do so. By sulkily ignoring the Chief Justice and refusing to touch his opinion in any way, the conservatives denied themselves that opportunity. If they were truly disgusted with Roberts, it’s also possible that they would be loathe to cite the opinion in future cases as well, thus further limiting the scope of Roberts’ attack on the Commerce Clause. So, if anyone made the argument that Roberts had doomed the Commerce Clause in his opinion, looks like they may have jumped the gun, and are obviously shoddy journalists.

As the initial whirlwind surrounding the ACA decision dies down and the focus returns to the election, I can breathe a bit easier knowing that the Supreme Court surprised us all by transcending politics (kind of) and quite literally saving the lives of millions of Americans. Does Chief Justice Roberts’s aisle-reaching portend a newfound willingness to compromise with the Court’s liberals? Doubtful. But at least this once, I think that the Chief Justice, and the Court, got the bottom line absolutely right.