So Chief Justice Roberts threaded the needle pretty masterfully yesterday, somehow managing to expand federal power by upholding the entire law, yet also curtail federal power by refusing to broaden the scope of the Commerce Clause. Half-a-loaf outcomes like this usually only serve to piss everybody off, but in this case both sides appear to be equally mildly satisfied and emboldened (with a few notable exceptions!). On an issue featuring such public emotion and vitriol and hyperbole, this seeming positive-sum outcome is really quite miraculous.
Many opponents of the law are saying that rather than a tie or a defeat, this is in fact a secret conservative victory because of the Commerce Clause curtailment and what that means for the cause of limited government longer-term. George Will, for instance, seems to have written his celebratory column before the ruling, on the expectation that the court would strike down the mandate. When this didn’t quite happen, I suspect that he just published the same triumphant column with minor edits reflecting Justice Roberts’ nuance. Either way, he seems pretty thrilled, declaring that Roberts has ably “served the cause” of conservatism:
By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul. This victory will help revive a venerable tradition of America’s political culture… By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise….”
Ezra Klein, a strong supporter of the mandate and the law, actually ends up in considerable agreement with Will, declaring John Roberts a “political genius” for his deft triangulation. Jonathan Chait notes that by refusing a nakedly partisan outcome, John Roberts “saves us all.”
Did Roberts really save conservatism, liberalism, and judicial independence all at once?
I don’t think so. Let’s not overthink this. The liberals still won.
In his opinion rejecting the Commerce Clause rationale, Roberts relies almost entirely on the activity/inactivity distinction:
The power to regulate commerce presupposes the existence of commercial activity to be regulated…. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority….
I will not relitigate this argument. Ok just one thing. I don’t think enough attention has been paid to the fact that what precipitated this attempt to regulate inactivity is another already in place regulation of inactivity: The Emergency Medical Treatment Act of 1986 mandates that doctors provide care to anyone needing emergency treatment; ie, it regulates doctor inactivity and mandates that they stop “doing nothing” and go engage in commercial activity. It’s not a perfect analogy (it’s not a universal mandate and it’s not clearly interstate activity being regulated). But it is what makes the health care market super special, and the court, if it so chose, could have affirmed the Commerce Clause rationale so narrowly around the unique features of the health care market as to disallow its use as a precedent for any slippery-slope mischief down the road.
But actually, that’s not quite right, and that’s the point I want to make today. Nothing the court decides “disallows” anything in the future. Wholly irrespective of what happened or didn’t happen yesterday, a future group of justices can and will do whatever the hell it wants with regard to the Commerce Clause. They don’t need a previous case or a precedent to rationalize or “open the door” to whatever nefarious/enlightened designs they have for/against our freedom. The justices can concoct any brand new theory or sophistry to open or close any doors they want at any time. For instance, Justice Scalia wanted to strike down the entire health care law no matter what, even though there were plenty of provisions in the law that were plainly constitutional. What to do? Make up a theory! In this case, the “Christmas Tree doctrine.” (yes, seriously). Voila, cognitive dissonance averted!
The fact that there are an unlimited number of bullshit doctrines yet to be invented and employed by tendentious Supreme Court justices explains why Democrats still got a far better deal than Republicans yesterday, despite George Will’s et. al attempt at jujitsu.
One way to illustrate this is to think about the supposed far-reaching precedent established yesterday, that Congress can’t use the Commerce Clause to regulate inactivity. Where else would Congress actually realistically be interested in regulating inactivity in the future? Lots of people talk about nutrition/health (the dreaded broccoli mandate, etc) as the next frontier, but I doubt it. States will certainly get more aggressive with health regulation, but they’re not bound by the Commerce Clause, and anyway, like New York’s soda ban and all the smoking bans across the land, there’s plenty of activity for states to regulate or proscribe if they choose, without entering the controversial inactivity thicket.
At the federal level, I’d say privacy/security issues are where we are most likely to see future attempts at regulation of inactivity. There’s already widespread public support for anything sold as security-enhancing, and everyone already agrees the government has the power to protect and defend blah blah. I could see future fines and penalties for being inactive and not getting some new national ID card, or for failing to get a bar code implantation, or for not purchasing (with a heavy government subsidy!) some personal locator device or a retinal identification machine or something.
Perhaps there will be a Supreme Court challenge that says these sorts of security mandates and regulations of various types of inactivity are unconstitutional under the limits of the Commerce Clause. The problem is that as a general rule, the conservative justices are deeply enamored with government surveillance and tend to defer to government claims about defending national security. Will they turn to each other and say, “Ahh let’s remember the activity/inactivity distinction of 2012!” Maybe. I doubt it. Rather, they’ll make up some new ponderous legal rationale, à la the Christmas tree doctrine, to get them where they want to go. If yesterday’s ruling helps them along the way, they’ll use it. If not, they’ll detour around it.
That’s why this really isn’t a secret victory for conservatives even though they got their legal precedent. A legal precedent may not be totally worthless, but these days it’s always just one new justice away from obsolescence. At least liberals got their law.