Could Chief Justice Roberts' opinion last week upholding the Affordable Care Act be viewed one day as a modern Marbury v. Madison? In that seminal case from 1803, Chief Justice John Marshall pulled off the greatest sleight-of-hand in the history of the Supreme Court.
In the bitter presidential campaign of 1800, Democratic-Republican candidate Thomas Jefferson defeated his archrival, John Adams, and swept his party into majority in the House and Senate for the first time ever. The outgoing Federalist party was apoplectic about the election results and hatched a scheme to check the power of their rivals for years to come. Before the Democratic-Republicans could take office in March, the lame-duck, Federalist Party-controlled Congress passed the Judiciary Act of 1801, greatly expanding the number of federal judgeships.
On his last day in office, President Adams appointed over fifty Federalist "Midnight Judges," including William Marbury. The Federalist-controlled Senate immediately confirmed all the "Midnight Judges," but Adams' Secretary of State (who, by the way, was John Marshall!) had so many judicial commissions to deliver that he could not finish the task. When Jefferson's Secretary of State, James Madison, was sworn in the next day, he refused to deliver Marbury's commission.
Marbury was livid at Madison's refusal, so he went to the Federalist-controlled Supreme Court to issue a writ of mandamus to force Madison to deliver the commission. Chief Justice Marshall issued a seemingly deferential opinion in which he said the Supreme Court did not have the power to issue such orders to executive officials. Had the Democratic-Republicans won?
Marshall claimed to be limiting the Court's power, but a closer look revealed that he had pulled off the greatest power grab in the history of the Court--the power to rule Congressional statutes unconstitutional. Marshall reasoned that even though Congress had explicitly granted the Supreme Court the power to issue writs of mandamus in its Judiciary Act of 1789, the Constitution did not grant such power. The Act was null and void. Nowhere in the Constitution did it say which branch had the final say on what is constitutional, but Marshall took this power for the Court. No other branch of government could stop the Court from acting in such a fashion because the Court was not acting but, rather, refusing to act, so Marshall's decision went unchallenged.
Similarly, Chief Justice Roberts' opinion upholding the individual mandate in the Affordable Care Act seems, on first blush, to defer Court power to that of Congress. The individual mandate required certain individuals who did not have health insurance through their employers, their spouses, or the government to purchase private health insurance or be forced to pay a penalty to the IRS. Roberts ruled that while the individual mandate could not be upheld under Congressional power to regulate interstate commerce, it could be upheld under Congressional power to levy taxes.
He found the Act constitutional, but in doing so he asserted that the Court, not Congress, has the power to determine under what constitutional power Congress is acting. Congress had been quite clear that the individual mandate was a "penalty" and not a "tax" and that the power it was exercising in imposing the penalty was its Commerce Clause power and not its Tax and Spending Clause power. Roberts could care less. Perhaps twenty years worth of Congressional findings of fact and assertions of certain Constitutional powers may now be irrelevant. As Roberts quoted from a previous case, "the question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”
For many of those who, like myself, oppose the Affordable Care Act on policy grounds, Roberts' decision to uphold the Act was a disappointment. But there are several potential silver linings in the decision, including the one mentioned above that the Court will limit Congressional power based on the words of the Constitution and not based on the assertions or semantics used by Congress when it passes a law.
A second silver lining in the decision is that Roberts did find the individual mandate unconstitutional under Congressional Commerce Clause power. This ruling solidifies a 17-year trend in the Court that Congress cannot simply appeal to the interstate Commerce Clause to do whatever it wants. In this instance the Court made clear that the power to regulate economic activity does not extend to power over inactivity. This part of the ruling, while ultimately not dispositive on the constitutionality of the Affordable Care Act, will have far greater future consequences on the Court and could significantly limit the power of the federal government.
A third silver lining is that Roberts gave states the freedom to opt out of the Medicaid expansion envisioned by the bill. The Act required states to expand Medicaid coverage from low-income adults with children to all individuals below 133% of the poverty level. It punished states who chose not to expand enrollment with not only loss of the expansion funds but also loss of all Medicaid funds. Roberts ruled that Congress can deny expansion funds but not all Medicaid funds, which would amount to roughly ten percent of state budgets.
I will vote not to expand Medicaid in this fashion, and you should hold all your elected officials in Tennessee to the same standard. Expanding Medicaid would be fiscally irresponsible. Congress is proposing to fund the Medicaid expansion for the first two years but not after that. As with many federal programs, Congress offers up-front money to seduce states into making promises to their citizens that they cannot keep. When Congress takes those dollars away, state taxpayers are left footing the bill. That is why I am proud to have led the opposition in Tennessee to taking stimulus funds in 2009 and why I am happy to lead the opposition to federal funds again. With your help, this time it will be a successful effort.
A fourth silver lining in the decision is that Congress remains free to repeal the Affordable Care Act if it so chooses. Had Roberts ruled the Act unconstitutional, elected officials would have no further say in the matter. Those of us who advocated for the appointment of Chief Justice Roberts and other justices who believe in interpreting the Constitution according to its original meaning did so in protest against Supreme Court justices who had used a Living Constitution interpretation to strike down acts of Congress with which they disagreed on mere policy grounds. Roberts certainly has not gone down that path. As Roberts said, Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
A fifth silver lining for Republicans is that outrage against the Affordable Care Act will help elect Mitt Romney president and help Republicans win a majority in the Senate to match their majority in the U.S. House. The Supreme Court decision helped bring a two-year-old, highly unpopular Democratic idea back to the forefront of American voters' minds.
I predict that the November elections will result in a Mitt Romney presidency and in Republican majorities in the House and the Senate. But I also predict that the Affordable Care Act will not be repealed. The reason for that is the same reason that the Act had to be rammed through Congress in a hurried fashion when it was first passed. It takes sixty votes to do anything meaningful in the Senate. Without sixty votes, Republicans will have a hard time repealing the Act.
The sixth silver lining is that the Roberts split decision may force Democrats to the negotiation table. By upholding the individual mandate as a tax but striking down the requirement for states to expand Medicaid, there may be individuals caught in between the two provisions. If states hold strong in their opposition to Medicaid expansion, there may be low-income workers who are not covered by Medicaid, who choose not to purchase health insurance, and who now will be faced with a 2.5% income tax hike. Even pro-tax Democrats will not want to be responsible for having hit this low-income group with a tax hike. Their desire to rewrite this provision may open the door for real, bipartisan health care reform that all Americans can be proud of. If that occurs, this decision may be in the league with Marbury v. Madison after all. Only time will tell.
Brian Kelsey is a Republican State Senator from Germantown and was one of 101 state legislators joining the challenge to the Affordable Care Act as Amici Curiae ("Friends of the Court") in a brief drafted by the Goldwater Institute. He has taught constitutional law as an adjunct undergraduate instructor at the University of Memphis.