Best of the Blogs: Aftermath of the Supreme Court’s Ruling on the Affordable Care Act

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.

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Victory For ObamaCare!

The decision in National Federation of Independent Business v. Sebelius is a victory for the supporters of the Affordable Care Act, and a fairly broad vindication for the constitutionality of the law.  Here are my initial thoughts:

This is a big win for the Obama Administration.  The only portion of the law struck down is the Medicaid expansion provision, on the grounds that Congress cannot threaten to take away funds previously granted to the States if the States fail to accept new conditions.  This strikes me as a fairly reasonable gloss on the case of South Dakota v. Dole and, at the same time, a constitutional interpretation that still allows Congress a fair amount of flexibility to attach conditions to the receipt of new federal dollars.

I am not persuaded by Justice Robert’s argument rejecting Congress’ power under the Commerce Clause.  It strikes me as primarily conclusory rather than analytical, and my initial reaction is that it should be considered dicta since Justice Roberts upholds the ACA on other grounds.  Of course, I have already made clear that I am inclined to agree with Justice Ginsburg that the Court’s precedent under the Commerce Clause provides ample support for the ACA’s constitutionality, as I argued in previous posts here and here.

Nor am I convinced by Robert’s tax argument.  He labors a great deal to make the case that the ACA does not impose a “tax” for purposes of the statutory Ant-Injunction Act but nonetheless imposes a “tax” under Congress’ constitutional taxing authority.

It appears to me that Roberts tried to split the baby in a statesman-like way, by giving victory to Obama but by using reasoning and language designed to placate President Obama’s critics.  Am I the only person who read Justice Robert’s opinion and thought of Marbury v. Madison?

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Restricting Liberty in the Name of Equality

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

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