Sometimes a Loss Is Just a Loss

Given the very strong likelihood that the centerpiece legislation of the Obama administration would be struck down in its entirety, yesterday's decision upholding the Affordable Care Act seems to most progressives like both a relief and a major political victory. But was it actually a legal victory when you examine the opinions closely? Tom Scocca says no:

Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

According to Scocca, Roberts engineered a big win for conservatives by fundamentally changing the law but doing so in a way that his opponents couldn't respond—a trick pioneered by Chief Justice John Marshall in Marbury v. Madison. If Roberts planted a time bomb that will blow up the New Deal down the road, this is a serious problem.

But, in reality, this is no major conservative win in any sense, as Scocca's central assumptions fail to withstand scrutiny. First, Roberts's opinion, even if it constrained future Supreme Courts in perpetuity, is a narrow one that does not substantially alter existing commerce-clause and spending-powers jurisprudence. Second, what Roberts wrote in NFIB v. Sebelius will do nothing to constrain future courts.

On the first point, Roberts's arguments (unlike some of those in the radical joint dissent) are narrowly tailored to the case at hand. Roberts's view that the ACA exceeded the federal power to regulate interstate commerce rested on the premise that Congress cannot regulate "inactivity." While specious, this argument is in a sense a welcome one for progressives because it does not apply to any conceivable future new regulatory framework unless you're a particularly paranoid Glenn Beck listener. The argument was designed to apply only to the Affordable Care Act, and this makes it irrelevant as a future standard. Roberts's opinion did not question the key precedents underlying the contemporary commerce power—Wickard v. Filburn and Gonzales v. Raich. Unless the broccoli lobby becomes more powerful than the military-industrial complex and ConAgra put together, even if Roberts's opinion governed all future commerce-clause cases the legislation would be evaluated by essentially identical standards as they would have been the day before Roberts's opinion was written.

Even if Roberts's opinion had ventured a more radical transformation of commerce-clause jurisprudence, it still wouldn't really matter. Scocca takes a very formalist approach to precedent, assuming that doctrines ventured in particular Supreme Court opinions will govern all future cases. But this is not actually how Supreme Court doctrine works. First of all, Roberts's commerce-clause views do not create binding precedent at all—joined by no other justice and unnecessary to decide the case, his commerce-clause arguments are just obiter dicta that don't even bind lower courts (let alone future Supreme Courts that are permitted to modify or overrule their own precedents).

More important, even if we leave aside the fact that no binding precedent was created by Roberts's commerce-clause analysis, his opinion today will not significantly affect how Supreme Courts with different personnel evaluate the federal commerce power. If Obama wins re-election and appoints replacements for Antonin Scalia and/or Anthony Kennedy, Roberts's opinion will be irrelevant because there will be at least five votes to uphold the basic New Deal/Great Society framework, and Roberts's opinion will be distinguished or ignored. (Which, since it was tailored to the specific facts of the ACA, won't even present a doctrinal challenge of any difficulty.)

If, conversely, Rommey wins and is able to replace Ruth Bader Ginsburg and/or Stephen Breyer, presumably one or both of his new appointments will join the four justices who already support radically transforming the New Deal/Great Society framework, and again the Roberts opinion will be beside the point. And lest you be tempted by Scocca's formalist view of how doctrine develops, consider this. Scalia and Kennedy—half of the justices in today's libertarian dissent—joined the expansive view of the commerce clause put forward by Gonzales v. Raich less than ten years ago. If justices don't feel bound by their own recent opinions, they're certainly not going to be bound by the dicta in the opinions of other justices.

Roberts did achieve something for conservatives by limiting Congress's use of the spending power in this case. By preventing Congress from ending all Medicaid funding for states that do not participate in the expansion of Medicaid—and only allowing them to take away new funding—Roberts did inflict damage on the ACA. But this damage will be confined almost entirely to the short term. Some Tea Party-backed legislatures will initially refuse the huge grants—but history suggests that they will almost certainly not hold out. Since the Roberts/Kagan/Breyer view of the spending power clearly allows Congress to attach conditions to new spending (and to maintain existing uses of the spending power), it will not be a significant limit on future Congresses unless the Supreme Court goes well beyond it. A Supreme Court that wants to do that could do it anyway.

NFIB v. Sebelius, in other words, isn't a hidden victory for conservatives hostile to the existing constitutional order; it's just a loss. Future commerce-clause doctrine will be determined by the future median votes on the Court, not by John Roberts's opinion in the case. The case represented an opportunity for conservatives to get that transformation now—and they didn't get it.

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