University of Pittsburgh

Hellman and Lobel on the Supreme Court Decision Regarding the Affordable Care Act

Publish Date/Time: 
July 2, 2012

On June 28, 2012, the Supreme Court upheld the majority of the Patient Protection and Affordable Care Act, a statute originally signed into law by President Barack Obama on March 23, 2010. While the Court's ruling states that the mandate is constitutional under Congress' taxing authority, it prevented the federal government from withholding all Medicaid funds to states that fail to comply with the expansion of Medicaid. Pitt Law professors and constitutional law experts Arthur Hellman and Jules Lobel weigh in on the ruling.

Professor Arthur Hellman's opinion:

There is substantial evidence within the Court opinions to suggest that Chief Justice Roberts initially voted with the four conservatives to strike down the individual mandate, but that he changed his vote sometime during the process. Years from now, when the Justices' private papers are opened to the public, we will learn whether he did change his vote, and perhaps why. Based on the public record today, I think that what happened was something like this.

I suspect that, from the beginning, the Chief Justice was torn between two basic principles of constitutional interpretation, both of which are stated strongly in his opinion - and which point in opposite directions. On the one hand, "the National Government possesses only limited powers," and it is the duty of the Court to enforce the "restraints on federal power that the Constitution carefully constructed." But it is also the duty of the Court "to save a statute from unconstitutionality" (particularly a federal statute) if there is a "fairly possible" reading of the statute that will produce that result.

In the end, Chief Justice Roberts persuaded himself that he could uphold the second principle (deference to Congress) without abandoning or subverting the first (the limited powers of the national government). He concluded that it was "fairly possible" to treat the individual mandate as "in effect just a tax hike on certain taxpayers who do not have health insurance." And as a "tax hike," it was within Congress's authority under the taxing power - even though, as he acknowledged, the "most straightforward meaning of the mandate is that it commands individuals to purchase insurance."

To minimize the damage to the first principle, it was important to the Chief Justice to reject the argument that the individual mandate could be sustained as an exercise of Congress's power to regulate interstate commerce. The four conservative Justices join him in this conclusion - but they write separately. What's really hard to understand is why the four do not join that part of the Chief Justice's opinion. Surely they would have wanted to strengthen its claim to be binding authority for future cases. But that claim is greatly weakened when there is no majority opinion in support of that result.

Professor Jules Lobel's opinion:

Chief Justice Robert's opinion for the Court in the Affordable Care Act case may have been his attempt to follow the lead of Chief Justice Marshall in the famous 1803 case of Marbury v. Madison. Two centuries ago, the brilliant Marshall decided the Marbury case in favor of President Jefferson - thus avoiding a head on collision with the political branches. While deciding the immediate issue in Jefferson's favor, Marshall did so in a manner which ultimately circumscribed the political branches power and elevated the Court's role, by asserting the Court's power to declare acts of Congress unconstitutional. So too, Roberts, held virtually all of the Affordable Care Act within the Constitutional authority of Congress, yet his ruling could potentially limit Congressional power to regulate the national economy and increase the power of the Court.

Justice Roberts, while upholding the controversial individual mandate as within Congress' taxing power, asserted that the Act could not be upheld under Congress' Commerce Clause power. He expressed a very narrow, formalistic view of Congressional commerce power that Justice Ginsburg, writing for Justices Breyer, Kagan and Sotomayor termed, "stunningly retrogressive". Likewise, Justice Roberts holding that Congress could not tie the expansion of Medicaid to a total cutoff of State Medicaid funding, has the potential for limiting Congressional power in the future and possibly even invalidating current legislation.

Thus, in the short term Justice Roberts has given President Obama a major victory, and like Marshall two hundred years ago, furthered the Court's legitimacy. However, in the long term Roberts opinion may aid the conservative activists on the Court who have used judicial review to thwart Congressional legislation.

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