“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.
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.
Sources:
Adam Liptak, “In
Health Act, Roberts Given Signature Case,” The
New York Times, March 12, 2012. http://www.nytimes.com/2012/03/12/us/health-care-act-offers-roberts-a-signature-case.html?pagewanted=all
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
