During his confirmation hearing, Chief Justice John Roberts promised to work for greater civility and consensus on the court and to look beyond politics in addressing legal issues. His opinion in the health care case makes good on those promises. By joining with the court’s liberal members to uphold the individual mandate, the Chief Justice makes plain that his concern was with law rather than a particular statute he perhaps thought unwise as a matter of policy. The opinion emphasizes repeatedly the importance of judicial restraint and respect for the policy judgments of the elected branches: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power to enact the challenged provisions.” That is certainly correct.
While those who support the Affordable Care Act will, of course, be pleased that its core provisions have been upheld, the aspects of the court’s decision that may prove most enduring are the limits it suggests on congressional power. Because the controlling opinion upholds the individual mandate under the taxing power, there was no need for it to address the commerce clause. But the Chief Justice, joined by the other four conservative members of the court, goes out of his way to reaffirm that the commerce clause has limits and to posit that Congress’s power to regulate commerce does not include the power to require individuals to participate in commerce. Perhaps the most striking limitation on federal power in the decision — endorsed by seven members of the court — is its reinvigoration of constraints on Congress’s spending power, Congress’s ability to induce states to adopt policies by making them conditions for receipt of federal money. By rejecting Congress’s authority to condition a major expansion of Medicaid on loss of funds from the pre-expansion program, the court for the first time has struck down a spending law as too coercive of the states. The commerce clause and spending clause/federalism limitations in the controlling opinion will likely spur new challenges to federal programs designed to test the exact contours of those limitations.
Seth Waxman served as solicitor general under Bill Clinton from 1997 to 2001.