The surprise this morning, aside from the fact that the Affordable Care Act survived, is how the court majority reached its conclusion, especially as it relates to the individual mandate.
The assumption had been that the issue would come down to the conservative justices' approach to the Commerce Clause. It didn't -- in fact, five justices found the mandate in conflict with the Commerce Clause. Rather, the decision focused on Congress' taxing authority.
As I've written many times, the conservative justices' interpretation still seems bizarre to me. The Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause. Q.E.D.
Five justices obviously disagree. But, many have wondered, doesn't this do at least superficial damage to lawmakers' ability to use the Commerce Clause in federal policymaking? Might this be a lasting downside to the Democratic victory? NYU law professor Barry Friedman told Greg Sargent it does not.
Friedman pointed to this segment of the decision: "The court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes."
Friedman suggests that this ratifies the power to tax to regulate inactivity. He acknowledged that the justices put a stop to the use of the commerce clause to do this but added: "I don't see them as withdrawing power. The chief justice validated taxing to do exactly the same thing."
Friedman added, "This is far more devastating to federalism and the balance of power between states and the national government. You can now tax pretty much anything."
Jonathan Cohn talked to Richard Primus, a professor of constitutional law at the University of Michigan, is thinking along similar lines: "People will say the discussion of the Commerce Clause is important, but its importance is symbolic rather than practical. This decision gave the Court a free shot to say that the commerce power is limited without having to strike anything down. Judges will get to say that the commerce power is limited and cite this decision. But no statute is likely to get struck down on this ground anytime in the foreseeable future."
Leave a Comment:
I believe the Gop are trying to steal some of the Presidents' spotlight. that's all, I just can't believe they would be so ignorant as to try and wage war against Mexico. Lundgren even went so far as to now, hold the entire Executive branch of our government in contempt. I guess the GOP are now preparing to go down in infamy. Their huge mail egos are taking them down the dark money highway. The one representative I don't know his name, but, he was sitting behind the speakers and laughing and texting, like this was all a big joke he got away with playing. Well, the joke is on you, compliments of the real joker.
Angel
Why are you posting this on a thread about the Commerce Clause. Shouldn't be on the thread above this one about the contempt of Congress vote?
s
It was a victory for Real Politik! Without the additional 33 million taxpayers joining the health insurance roles, Medicare will go broke as the Baby Boomers demand and will receive more health care as we age. (I'm in that group!) I'm fairly certain that the Chief Justice was informed that economic catastrophe would ensue if the Act were held to be unconstitutional. Hence, he held his proverbial nose, made some really awkward arguments, i.e., the mandate is constitutionally supported under the taxing and spending provisions of the Constitution but it is not a tax for procedural issues.... (Ya gotta love SCOTUS since it appointed Geo Bush 5-4 to be POTUS in 2000 without letting Florida recount its ballots! ), and decided to save Medicare from financial implosion and Republican catastrophe when that most beloved and hallowed single payer governmental health insurance program goes bust and they will be blamed forever by an unforgiving populace for that necessity's demise. So, in this case, the Chief Justice played the role of the reluctant hero, for which he will take some heat from the Teal Partyers and other petty politicians of the moment; but, he is gambling that in the end, he will be seen through the lens of history as the man who helped stave off the threat of fiscal disaster for the health care industry in this country. I believe that his personal legacy and the Nation's welfare were more important to him than creating consistent legal analysis or currying present political favor