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Monday, November 4, 2013

Chief Justice John Roberts: Federalism Beyond Medicaid

“As chief justice, Roberts has been extremely careful with the institutional reputation of the court.” So says one of the lawyers who filed a brief to unhold Obama’s signature health-insurance law of 2012. Even so, the Roberts court had since 2005 cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants, and the government’s authority to take race into account in college admissions decisions. The question of the reach of federal power, which is at the heart of the case on the health-insurance law, has been less salient, particularly relative to the Rehnquist court, according to Sri Srinivasan, principal deputy solicitor general for the U.S. Government at the time of the case.

The last time the U.S. Supreme Court had “ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.” Not long after he joined the U.S. Court of Appeals for the District of Columbia Circuit in 2003, Roberts argued unsuccessfully that the commerce clause should not be used by Congress to protect an endangered species—a toad—which “for reasons of its own, lives its entire life in California.” That is at least predominately not an economic objective, however, and the Morrison and Lopez cases in the Rehnquist court had dealt with non-economic objectives through the commerce clause.

                            John Roberts, Chief Justice of the U.S. Supreme Court                       Brendan Hoffman/NYT

Roberts’ general view regarding the commerce clause can be grasped from what he said at his confirmation hearing to be the Chief Justice. “It is a broad grant of power,” he said. Congress “has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.” If he meant that Congress has the definitive authority to assess whether a proposed Congressional law fits within the commerce clause, Roberts was putting Congress in a conflict of interest in terms of Congressional power.

Concerning the conflict of interest, the vested interest that Congress has in its own authority can be expected to weigh heavily in any self-determination concerning whether the commerce clause applies to a piece of legislation. Separation of powers does not forestall the Court from its responsibility to interpret the U.S. Constitutional through judicial review of Congressional laws. Even if it can be assumed that lawmakers who voted for Obama’s health-insurance law believed the commerce clause justifies the mandate, those lawmakers should not have the final say in judging the matter of their own use of power. Otherwise, there is little in the U.S. Constitution that can limit government, and this is what a constitution does for a living.

Fortunately, Roberts did not leave the matter of the health-insurance mandate to Congressional judgment in the oral arguments. Like some of the other justices, he expressed concern over the power of Congress to create commerce by forcing citizens to purchase a product even so that the manner of payment for healthcare could be better regulated. Such a concern was hardly new. His observation on the following afternoon concerning whether the Congressional expansion of Medicaid violates the states’ sovereignty, and thus federalism, is more stunning as a rebuke on Congressional power.

At issue in the oral arguments over Medicaid was whether the discretion of the Secretary of Health and Human Services to withhold all federal funding for Medicaid should a state government refuse the expansion financed 90 percent by the U.S. Government constitutes coercion. Justice Breyer suggested that such a threat was not rational and thus could not stand as viable discretion, even given the statute’s allowance. However, Justice Scalia pointed out that a statute itself need not be rational. Even if coercion is not involved in offering a gift of federal money, the threat to withhold what the state had been accustomed to receive could constitute coercion because the states had already become dependent on the federal trough.

The reality is, the Chief Justice said, the states have “since the New Deal” cheerfully accepted federal money. “It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done.” He could well have ended his statement with “has given.”  Of course, the “gifts” of federal money have come with strings, and the expansion of Medicaid that was at issue in the oral arguments is no exception. Indeed, the expansion is backed up by an explicit threat of withholding the existing funding should a state government refuse. Beyond the question of whether either the strings or the threat constitute coercion, Justice Roberts’ broad constitutional observation of compromised independent sovereigns transcends the issue of Medicaid. American federalism itself has been compromised.

The state governments, which together constitute a system of government within the federation, have become like dependent vassals from decades of taking money from the General Government of the Union. States implementing federal statutes constitutes decentralized consolidation, not federalism. The federal model constructed in convention in 1787 requires two systems of government, each of which is sovereign in its own domains of power authorized by a constitutional document. A reduction to one sovereign is like collapsing one lung, and the person is compromised. What were to be sovereigns having residual power and able to serve as a check on overreaching by another sovereign, the federal government—one of limited powers—had been compromised by dependency. As salubrious as gift-giving is, if the practice makes others dependent over time, sickness impairing liberty is bound to result.

In a unanimous decision in 2011, Justice Kennedy wrote that limiting the power of the U.S. Government “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.” When a government in a federal system of public governance (e.g., the U.S. Government) is allowed to encroach on the domains of another system of government in the federation (e.g., the state governments), the precedent is established by the deed itself whereby the constitutional parchment is relegated or rendered wholly impotent in constraining government. As providing constraints on government is the job of a constitution, the constitutional basis of governance itself is compromised when one government in a federal system gets away with monopolizing the governmental sovereignty. Ultimately, the rule of law is compromised here by power aggrandizement—an addiction to power that operates in denial of constraints.

Regardless of whether the states were at fault in taking so much federal money or Congress had over-reached even in offering the gifts (gifts with strings), the federal system itself is out of balance, or sick, because the states are no longer governmentally sovereign. To prescribe a treatment, the medicinal focus must go beyond questions of fault to arrive at remedies oriented to restoring health to the system as a whole. That is to say, the focus must be on the overall system of federalism. Deferring to the patient (i.e., Congress), saying in effect, heal thyself, is a recipe for death. With the people largely unconscious, the media and popular politics myopic, and the presidency too often issue-oriented and partisan rather than oriented to the whole, Chief Justice John Roberts may hold the fate of the patient in his hands.

Adam Liptak, “In Health Act, Roberts Given Signature Case,” The New York Times, March 12, 2012.

Adam Liptak, “On Day 3, Justices Weigh What-Ifs of Health Ruling,” The New York Times, March 29, 2012. http://www.nytimes.com/2012/03/29/us/justices-ask-if-health-law-is-viable-without-mandate.html?pagewanted=all
Adam Liptak, “Appealing to a Justice’s Notion of Liberty,” The New York Times, March 30, 2012. http://www.nytimes.com/2012/03/30/us/justice-anthony-m-kennedy-may-be-key-to-health-law-ruling.html