The Roberts decision: an esoteric reading

John Roberts actually understands that health care ain’t broccoli, but had ideological reasons for pretending he didn’t.

A friend with professional interest in health care policy and a political stance somewhat to the right of the RBC center of gravity – and who predicted that the Supreme Court would rule the ACA constitutional – writes:

Although my prediction that Roberts would vote to uphold proved correct, he outsmarted me. It’s so obvious now in retrospect, but it didn’t occur to me that he would uphold the individual mandate on taxation grounds while rejecting the standard interstate commerce justification. Brilliant. He managed to support the health care policy outcome he wanted (strengthening private insurance coverage), enhance his own reputation, and avoid criticism of the court without giving ground on constitutional interpretation.

Roberts understands that healthcare is different from broccoli. If you read his decision from an esoteric rather than exoteric perspective, I think you’ll hear him saying, “Of course the decision to go uninsured has commercial effects that are broad enough to justify Congressional regulation. But I’m not confident I can accept that argument in this case without setting a precedent that would be used to try expand Congressional authority in ways I want to avoid.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

13 thoughts on “The Roberts decision: an esoteric reading”

  1. From the perspective of a legal conservative, this was a victory. It placed limits on the Commerce Clause and on using Medicaid to influence states. Only from a straight political conservative position is it a loss.

    1. But to modern American conservatives, everything subserves politics.

  2. “Of course the decision to go uninsured has commercial effects that are broad enough to justify Congressional regulation”

    That’s factually incorrect.

    1. Just to clarify the significance of coffee, I was referring to the famous case of Katzenbach v. McClung. The case was brought because Ollie McClung who was the owner of Ollie’s Barbecue, in Birmingham Alabama, refused to serve blacks in apparent violation of the Civil Rights Act of 1964. The court found that the ’64 Act prevented restaurants serving interstate travelers, or receiving a substantial amount of their food from interstate commerce, from discriminating on the basis of race.

      How does coffee enter into the picture? Even though the clientele of Ollie McClung’s BBQ restaurant was entirely local, the food McClung served was not. Roughly 46% of the meat Ollie served came from out of state and since coffee isn’t grown in the continental United States, perforce all of his had traveled in interstate commerce.

      Therefore, when C. Van Carter claims that the decision to go uninsured does not (as a purely factual matter) have a sufficient impact on interstate commerce to justify regulation by Congress, I naturally (and I thought humorously) thought that if Ollie McClung serving coffee was a sufficient effect then, really, almost any would be (and so it had always been assumed since 1964).

  3. It’s still esoteric to me. Roberts’ opinion means that the taxing power fills the newly-recognized gap in the commerce power. That is, congress can “regulate individuals precisely [when] they are doing nothing” by structuring any penalties as taxes. What sorts of expansions do Roberts’ constructions functionally limit? What gap in legislative authority is left over?

    (I see the political utility in Roberts’ constructions: They put pressure on congress to call a tax a tax. And they might sow rhetorical seeds from which actual substantive retrenchment could be reaped by a conservative bloc down the road. But those are different concerns.)

    1. “The taxing power fills the newly-recognized gap in the commerce power”. Not quite. Congress can impose a broccoli non-consumption tax, but it can’t throw true patriots into dungeons for anti-broccoli thoughtcrime, as it could under the commerce power, which allows penal sanctions.

      BTW, when will wingnuts take up Ginsburg J’s coat-trailing (page 30) on the legitimacy of a vegetarian state under the Commerce Clause:

      The commerce power, hypothetically, would enable Congress to prohibit the purchase and homeproduction of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables.

  4. Just to idly speculate, but I would tend to agree with those who say that Roberts shifted his vote because he lost his nerve when he saw that even a large number of highly respected conservative legal scholars would be highly critical and a huge number of liberal and moderate scholars would go so far as to call the court a mere political branch. There’s a good piece by David Franklin in Slate that makes the case that Roberts knew that the legitimacy of the court was on the line: Also, James Fallows to similar effect at least regarding the decision as reflecting Roberts’ loyalty to the institution:

    I also think that the man most responsible for putting Roberts in this box was Scalia who has been out of control with his public statements and his written opinions in a lot of the really nasty 5-4 decisions. Probably the “broccoli” thing during oral argument made it very impossible for Roberts to support a party-line vote overturning a major piece of legislation on transparently frivolous grounds. My guess is that Roberts has either signed on to a majority opinion or was circulating a draft of what he released today and had to pull it after the “broccoli” remark.

  5. I don’t think this decision necessarily limits the Commerce clause, which was in any case thoroughly stretched by the Raich decision in 2005. (Roberts wasn’t on the Court for Raich, but he may have concurred in dissent with the outraged Justice Thomas, who knows?) Mark, I think your friend makes a good case that Roberts was reaching for some way to steer the Court away from the swelling perception that it’s mirroring the political disfunction afflicting the legislative branch and the electorate.

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