The Supreme Court’s decision upholding the constitutionality of the Affordable Care Act has generated a great deal of “instant analysis” on the web. This post will survey some of the noteworthy commentary.
I have not read anything that has caused me to re-evaluate my initial reaction to the decision. I thought that neither Justice Robert’s Commerce Clause analysis nor his Taxing Power analysis was particularly compelling, yet I was struck by the manner in which the Chief Justice managed to construct a 5-4 majority that paralleled Marbury v. Madison insofar as the ruling chastized a sitting President with its rhetoric while simultaneously handing the President a major policy victory. Upon further reflection, I still believe that future Supreme Court justices will find it quite easy to evade the boundaries that the language of the NFIB v. Sebelius decision purports to place on federal government power. All it will take is a change in one vote for a future Court to designate the opinion’s Commerce Clause analysis as “dicta,” or else to find the requisite level of coercion lacking the next time that Congress’ deploys its Spending Power in a similar fashion. While the rhetoric of the opinion promises doctrinal limits on federal power, the actual holdings of the decision fail to deliver on that promise.
John Yoo has come to the same conclusion. In an op ed piece in the Wall Street Journal he considers the spin that some political conservatives have placed on the Court’s ruling — that it was a victory for the advocates of limited governent — and finds these assertions to be no more than a “hollow hope.” He rejects the comparison to Marbury v. Madison, and instead compares the opinion of Justice Roberts to the “switch in time” that led the Supreme Court to uphold New Deal Era legislation during the Franklin Roosevelt Administration. By frustrating the Supreme Court’s best chance since the 1930s to reverse what Yoo views as an anti-originalist acceptance of broad legislative power, Justice Roberts has let Professor Yoo down.
If anyone is to blame for the failure of the conservative wing of the Court to seize this opportunity to recalibrate the scales of federal and state power , David Bernstein at The Volokh Conspiracy and Michael Ramsey of the University of San Diego place a great deal of the blame on the shoulders of Justices Scalia and Kennedy. After all, by voting to uphold Congress’ power to regulate home-grown marijuana in Gonzales v. Raich, these two erstwhile conservatives undermined the momentum that had been generated by the earlier Lopez and Morrison cases. Due to the existence of the Raich case, and the inconclusive nature of the Court’s reasoning in NFIB v. Sebelius, the scope of congressional authority under both the Commerce Clause and the Necessary and Proper Clause remains muddled at best.
One wonders whether Justice Scalia, in particular, regrets his vote in the Raich case. Noah Kristula-Green writing at the DailyBeast looks at Justice Scalia’s career on the Court, and finds a Justice whose judicial philosophy has evolved. Political conservatives once argued in favor of originalism as a vehicle for constraining judges who might otherwise impose their personal policy preferences on the public. Today, these same conservatives still embrace the tools of originalist analysis, however now the purpose is not to police judicial activisim but instead to advance a favored economic outcome.
Meanwhile, John Mikhail at Balkinization challenges the conservative argument that an originalist mode of constitutional analysis inevitably leads to the conclusion that the Constitution limits the power of Congress to address national problems. By focusing on James Wilson, Alexander Hamilton, and John Marshall, he presents an originalist argument in favor of a broad construction of the Necessary and Proper Clause. I particularly like the link that Mikhail makes between the philosophies of James Wilson and Theodore Roosevelt, and the latter’s conception of federal power during the Progressive Era.
All of the foregoing may seem to range far afield from the nuts and bolts of the actual decision on the Affordable Care Act. Blockbuster decisions such as this tend to become a prism through which advocates and academics alike seek to interpret the broader course of political history.
At Scotusblog, David Kopel summarizes the decision in “law review” style, the way that next year’s First Year students might describe the case in their class outlines. Randy Barnett breaks down, and criticizes, Justice Robert’s analysis under the Taxing Power in this post at The Volokh Conspiracy. Jonathan Adler performs another post mortem at the same blog, focusing on instances where Justice Robert has previously upheld statutes against constitutional challenge by adopting a strained “saving construction” of the legislative language.
Looking ahead to the future of the healthcare debate, Brad DeLong’s blog has the transcript of a panel discussion reviewing the economic and legal challenges surrounding the implementation of the Affordable Care Act, now that its constitutionality has been upheld. And over at Balkinization, Joey Fishkin has an excellent post on the political implications of the Supreme Court’s ruling in the run up to November’s presidential election and beyond.
All in all, it has been an eventful end to the Supreme Court’s term. The NFIB v. Sebelius ruling will continue to be the subject of analysis and debate for years to come.