Roberts’ majority opinion in Thursday’s health care ruling could have grim implications for future social welfare programs, warns former solicitor general Neal Katyal.
In an appearance on that night’s The Rachel Maddow Show, Katyal—who previously defended the Affordable Care Act before the Sixth Circuit Court of Appeals—said that, while only time would tell, it was at least possible that Roberts’ interpretation of the commerce clause “could blossom and become fairly radical constitutional theory in eliminating federal acts of Congress.”
Proponents of the health care law’s individual mandate argued that it was constitutional under the Commerce Clause, which gives Congress the power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Opponents argued that the Commerce Clause did not apply, because the individual mandate levies fines against those who aren’t conducting commerce—that is to say, those who have not purchased health care.
As Lean Forward’s Zachary Roth reported, Roberts, though he upheld the constitutionality of the individual mandate as a tax, rejected its constitutionality under the Commerce Clause, writing, “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.”
Because Roberts chose to interpret the mandate as a tax, his reading of the Commerce Clause bore no direct relevance on the constitutionality of the health care law. Lyle Denniston of SCOTUSblog wrote that, “The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws.” Writing for The Nation, Georgetown law professor David Cole took a different view. “[W]hile some have termed this a major restriction on Commerce Clause power,” he wrote, “it is not clear that it will have significant impact going forward, as the individual mandate was the first and only time in over 200 years that Congress had in fact sought to compel people to engage in commerce. It’s just not a common way of regulating, so the fact that five justices think it’s an unconstitutional way of regulating is not likely to have much real-world significance.” Roberts’ Commerce Clause is not the only part of Thursday’s ruling that could constrict Congressional authority in the future. As Katyal noted—and as we reported earlier—the Court may have also set a new precedent limiting Congress’ authority when they ruled on the law’s expansion of Medicaid.
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog. Recommended
