Initial Thoughts on the Health Care Ruling

The full set of opinions, with the syllabus, total 193 pages. I’m not sure if that’s a record, but it’s up there.

The primary dissent is a joint dissent by all four dissenting justices. This is unusual. Their dissent rejects both the individual mandate and the Medicaid expansion. Because these two provisions are central to the act, the dissenters would invalidate the law in its entirety.

Chief Justice Roberts rejects the Commerce Clause and Necessary & Proper Clause rationales for the mandate even though doing so would not seem to be necessary for the result. If the mandate may be upheld on taxing power grounds, why reach these clauses? One possible answer is that the Chief Justice embraces a constitutional avoidance rationale for construing the mandate as a tax (similar to what he did with the Voting Rights Act in NAMUDNO). Showing the constitutional problems with the mandate is thus necessary to justify the construction the Chief offers of the Act.

This opinion reaffirms that the Chief Justice is, in many respects, a conservative minimalist. This opinion, combined with others we’ve seen this term, is revealing how the Chief Justice and Justice Alito differ. The Chief is more minimalist in his approach and more deferential to federal power (save on the First Amendment, where Justice Alito seems more deferential).

Holding the mandate exceeds the scope of the Commerce and Necessary and Proper Clauses poses no threat to any other existing federal program or law that was not already in jeopardy. That is, this holding does not narrow these powers. Rather it reaffirms their limits.

Holding that it would be unconstitutional to terminate existing Medicaid funds to states that refuse to go along with the Medicaid expansion is quite significant, particularly as seven justices joined this result. While the holding here may not go beyond the limits articulated in South Dakota v. Dole, the Supreme Court has not limited the exercise of the spending power to impose conditions on states since the New Deal and, again, seven justices endorsed this result. Going forward, I expect this portion of the opinion to have the greatest practical impact. In fact, I can think of some federal laws, including portions of the Clean Air Act, that are likely to be challenged on these grounds.

I posted some additional thoughts on Bench Memos here.