If you managed to wade all the way through yesterday’s post about National Federation of Independent Business v. Sebelius, No. 11-393 (slip op. June 28, 2012) – and my condolences if you did – you know I have a lot to say about Chief Justice Roberts’ opinion for the Court. And I haven’t even gotten to Justice Ginsberg’s concurring and dissenting opinion yet … although (spoiler alert) as you might imagine, I think her opinion should have won the day.
In any event, while I take issue with certain aspects of Justice Robert’s opinion, I have to admit I’m fascinated by it. I am particularly fascinated by the pains he took to avoid applying the Bill of Rights to the individual mandate, that thing the Tea Party told us was the very death knell of, you know, FREEDOM and LIBERTY.
Here’s what I mean. Justice Roberts, in his majority opinion, made it very clear that the Court was solely concerned with whether the challenged provisions of the ACA – the individual mandate and Medicaid expansion – were legitimate exercises of Congress’ enumerated powers under Article I. Writing for the Court, he explained:
Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.
National Federation of Independent Business v. Sebelius, slip op. at 3.
Moreover, Justice Roberts’ civics lesson continues, state governments, unlike the Federal government, are not limited to certain enumerated functions under the Constitution:
The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).
Id., at 3-4.
So, why is this so fascinating? Well, I don’t take issue with the basic principles of federalism set out in the Chief Justice’s opinion, but it does lead to an odd result: While Justice Roberts thinks the individual mandate falls outside Congress’ powers under the Commerce Clause, he does not seem to think it violates the Bill of Rights.
In other words, Justice Roberts could have said that because the Commerce Clause permits Congress to regulate not only interstate commerce itself but anything affecting interstate commerce, and because the decision not to purchase health insurance clearly affects interstate commerce, the power to regulate that decision-making falls within the ambit of the commerce power – but, he could have said, forcing people to buy insurance violates, for example, the substantive liberty component of the Fifth Amendment’s Due Process Clause, or the Ninth Amendment’s catch-all provision (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). See, e.g., Griswold v. Connecticut, 381 U.S. 479, 492 (1965) (Goldberg, J., concurring) (“The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments”).
But here’s the thing. Had the court so ruled, it would have meant that no government, state or federal, could compel individuals to engage in commerce, to purchase insurance or broccoli or any other good or service. That’s because substantive principles of due process apply to both state and federal governments (Griswold, for example, dealt with state law). And that would mean that the Court’s ACA decision would not only limit the power of the federal government over our day to day lives, but would limit the power of the states over our day to day lives as well.
Yet, for all the conservative weeping and gnashing of teeth over Justice Roberts’ majority opinion, I haven’t heard any of our friends on the right bemoan that particular missed opportunity.
Very interesting indeed.
[Photo credit: Chief Justice John Roberts, by Ann Wilkins/U.S. Courts Circuit Executive’s Office/AP]