international analysis and commentary

The real conservative victory on healthcare


Most Americans of every political persuasion are under the impression that liberals dodged a bullet in the healthcare ruling thanks to Chief Justice John Roberts. But, in fact, a majority of the Court did find Obamacare unconstitutional under the commerce clause. While Roberts found a way to uphold the two key provisions of the Act in order to sidestep the appearance of blatant politics – for which he is now being lauded by the media for moderation and blasted by conservatives for cowardice – he provided the key fifth vote to put in place a wholly conservative reinterpretation of constitutional law. 

Roberts’s pivotal opinion actually went even further than that of the four other conservative justices’ (the “joint dissent”) in offering three theories for limiting the federal government’s power under the Commerce Clause. All are based on clear, categorical distinctions: “action” versus “inaction,” “present” versus “future” and “settled” versus “novel.” The one that seized the imagination of Obamacare critics, and forms the core of the joint dissent, is the distinction between “action” and “inaction”: If the government can regulate “inaction” (in this case, not buying insurance) and then compel you to act – so goes the argument – then there’s no limit to what the government can order. This argument is self-evident to its adherents but, like all attempts at categorical distinctions throughout the Court’s history, is unlikely to prove so compelling over time. 

Take a simple and well-known quandary: An out-of-control train hurtles toward a switch that could send it on one track, where it will kill someone you care about, or off on another where your loved one will be spared but the train will fall into a ravine and kill all on board. You hold the lever controlling the switch in your hand.  There might be a meaningful distinction between action and non-action here, but there is none between the government’s power to regulate one or the other.

Roberts dismisses this as mere philosophizing, but it is as much a distinction without a difference when applied to the practical realities of the healthcare mandate: Congress can, even in the conservative view, regulate the healthcare market as part of its oversight of interstate commerce. Congress could therefore declare that, to end cost-shifting caused by non-payment of medical bills, the only acceptable method of paying for healthcare is a pre-paid plan (i.e., insurance). For good measure, it could also repeal the federal requirement that hospitals treat everyone, even those too poor to pay for it (as conservative Justice Antonin Scalia appeared to suggest at the oral argument), making it legally impossible to obtain healthcare except through purchase of insurance. It’s hard to see what in the Constitution would prohibit this, even – in fact, especially – under the conservatives’ view of the commerce clause. Now, toss in a humanitarian provision: For a relatively small annual “fee,” you can opt out of the full health insurance market until you really need it, then get insurance at the same rates as anyone else. There is, in fact, no difference between that and Obamacare, save one: Under the hypothetical, one retains the theoretical option of “not acting” – of not paying the “fee,” never using healthcare services or insurance, ever, and thereby escaping all governmental compulsion. The law’s opponents believe the Constitution compels this libertarian refuge. Since, however, it is also an option that even the Court itself accepts virtually no one will ever choose, the conservative justices must construct an additional dichotomy: between the present and the future.

For them, the fact that everyone will enter the healthcare market at some point is not enough to allow the federal government to regulate anyone’s action at this point; rather, Congress can reach only individuals engaged in purchasing healthcare services of some sort right now. But this seemingly self-evident distinction, too, is unlikely to hold up in the future. For instance, Congress could conclude that all car sales (an analogy Roberts seems to like) need to include catalytic converters to reduce emissions, but under the conservatives’ logic could not require all car owners to install them on their existing cars because no such car owner is, at the moment, in the market for a new catalytic converter. Of course, Congress could just prohibit the use of cars without catalytic converters, which would put everyone in the market for one; the conservative justices might complain that that constitutes creating commerce in order to regulate it, which they say is wrong, but it would be permissible.

Thus, neither the proffered distinctions between action and inaction or present and future are likely to withstand sustained jurisprudential development. So Roberts offers another explanation – an objection to the “novel.” He quickly drops it, noting that new things aren’t always constitutionally invalid simply because of newness, but he does at least momentarily hint that the entire enterprise of constitutionalism is to keep things the way they were.

Which brings us to Roberts’ basis for upholding Obamacare – the taxing and spending power of the federal government. It was clear from the outset that Congress could have reached exactly the same result as Obamacare by using the taxing and spending power to set up a mandatory government-run healthcare program (just like Medicare) and then giving people the option of buying health insurance on the private market instead of paying for it through the federal government (as Republicans modified Medicare under George W. Bush). Again, that is essentially what Obamacare does, anyway, and Roberts’ decision to hang its survival on the taxing power tacitly acknowledges that. Since there is no meaningful difference at issue here, we are once again back to arguing simply about labels. But labels matter, the joint dissent argues forcefully, and if Democrats want Obamacare to survive because of the taxing power, they should have the guts to call it a tax and test its acceptability with that label in the court of public opinion. In different ways, then, all five conservative justices are saying that the only way liberals can constitutionally advance liberalism is through taxing-and-spending programs. This has two ramifications.

First is the political: There’s obviously something of a bet here that, Americans being allergic to taxation, this will be sufficient to end all further government programs. More important is what it does to the edifice of government erected over the course of the 20th Century: It makes most of it unconstitutional. A shrinking commerce clause means shrinking federal authority to regulate business, in areas from pollution control to labor relations to civil rights – all founded on the commerce power. Essentially, this position says that if the government wants something done, it should do it itself – for example: imposing new emission requirements, bad; paying businesses not to pollute, OK. This is, in fact, consistent with the long-time aim of conservative jurists in the area of the Constitution’s “takings clause,” which requires compensation for the taking of private property: They want all economic impact of regulations to be considered “regulatory takings” and thus subject to compensation – sure, government can require Exxon to pollute less, but that reduces the value of its business, so taxpayers must pay Exxon to do so. So, while Republican politicians campaign almost entirely to demonize taxing and spending, Republican judges are working to shut down the federal government’s ability to do anything but through taxing and spending.

Despite Republican attempts to play on Roberts’ characterization of the mandate as a tax, I’m giving the public enough credit to realize over the next four months that it’s a tax hardly anyone will pay: It’s only relevant if you actually don’t want health insurance, which is true of hardly any Americans. In fact, the dreaded mandate-turned-tax has been set so low in the federal legislation that there’s actually a good argument that it makes sense simply to pay it rather than an insurance premium – especially if you’re healthy and/or wealthy. If enough families pursue this option, the main effect of Obamacare would be essentially to turn today’s health system, which is really less about insurance against risk and more about pre-paid care, into something more like insurance in other contexts, protecting against catastrophic costs and reducing the role of third-party payment for day-to-day medical expenses  â€“ which used to be the Republican prescription for reforming the market and controlling costs: It’s not just the mandate itself that comes from the conservative playbook. 

Yet conservatives are howling. Can someone please tell them they’ve won?