Conservatives Come Out On Top in Health Care Decision (Commentary)

By John T. Billings ’13

That’s right, the conservatives. Yes, the progressives got their health care law. But the constitutional principles the Supreme Court laid out yesterday are, for the most part, lasting conservative victories.

Most importantly, a 5-4 majority of the court found the federal government powerless, under the Constitution’s Commerce Clause and Necessary and Proper Clause, to compel individuals to engage in commerce. This is a big win for advocates of limited government, and decidedly puts to rest the notion that the feds can force one private individual to purchase goods from another.

After the recent release of the Arizona S.B. 1070 case, yesterday’s Affordable Care Act decision struck a much needed blow for federalism. A 7-2 majority found that the federal government could not bully the states into complying with federal programs by threatening to remove the entirety of their existing Medicaid funding. If the Medicaid expansion provision had passed, the feds could have effectively coerced states into complying with their every demand, despite the lack of enumerated constitutional authority to do so.

Finally, by voting across ideological lines, the chief justice recouped much needed legitimacy to the court and reasserted its stature as an impartial interpreter of the Constitution, rather than a group of unelected partisan policy makers. As Chief Justice John Roberts eloquently states:

“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people.”

With the Supreme Court’s dismal approval rating and the recent attacks from the political left, upholding the ACA brings a perception of objectivity to the court and perhaps even a little political license to vote along conservative lines in the future.

To be sure, the Supreme Court’s decision to uphold the individual mandate – sorry, the individual-without-health-insurance tax – leaves a bitter taste in many conservatives’ mouth. Under Chief Justice Roberts’ reasoning, the government cannot force you to purchase something, but they can leave you a choice and stick you with a hefty penalty – oops, tax – if you do not comply with their wishes.

Robert’s decision to uphold the law relies on the interpretation of what constitutes a tax, and what constitutes a penalty.  What’s the difference between a tax and a penalty you ask? Good question. Roberts reasoning goes like this: (1) If the payment is low enough that individuals have the option to comply with the government’s wishes or not, (2) if there is no scienter (i.e., intent) requirement, as penalty for unlawful acts often have, and (3) if the payment is collected solely by the IRS through the normal means of taxation, then it is a tax.

Sure, none of these factors actually looks to the primary purpose of the fee (which is to get everyone to purchase health insurance, not to raise revenues) or to the statutory language of the law itself (which calls it a “requirement,” states that individuals “shall” purchase minimum coverage, and notably places it in Title I rather than the revenues section of the ACA).

But that’s not the point. By using this three-step “functionally test,” rather than the bright-line statutory interpretation employed by the dissent, Roberts effectively limits the holding to this particular case. The next time a similar law comes before the Court, Roberts can simply deem the fee a penalty because it is, by some abstract measure, overly coercive to the individual.

Epitome of excellence in constitutional reasoning? Not by a long shot. Politically savvy? Quite.

While the progressives and democrats in Congress may feel vindicated, the ACA decision is a major win for conservative principles of limited government, federalism, and judicial restraint.



  1. Meaghan Miracle '13 · · Reply

    Not to mention a large part of the opinion – striking down the forced Medicare expansion for States; which essentially holds that the Federal Government can no longer coerce State’s into policies based on their receipt of federal funds. Huge.

  2. Bill Chipman · · Reply

    As the judge stated in My Cousin Vinny: ” That is a lucid, intelligent, well
    thought-out objection”

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