How Far Did Roberts Really Stray?

Brookings Institution, June 28, 2012

It was always easier to count to five for an opinion upholding the Affordable Care Act than for one striking it down. In order to strike it down, all five of the high court’s conservatives would have to be rock-solid, they would have to stand together on everything. If one of them decided that the individual mandate constituted a tax for purposes of the Anti-Injunction Act, the mandate would stand for now. If one decided that the individual mandate represented a valid exercise of the Commerce power, the mandate would stand. And if one decided that the individual mandate represented a valid exercise of the power to levy taxes, it would stand. Only if all five agreed on all of the major points would the law fall.

Truth be told, the conservative bloc did remarkably well—much better than most observers predicted at the outset of the litigation (though not quite as well as many of those same observers predicted after oral argument). They held together on jurisdiction, and they held together on the Commerce Clause. And only one broke ranks on whether the mandate could reasonably be seen as a tax and whether the Medicaid mandates on the states must fall.

That was enough, and the result is a huge victory for the administration. But it’s a win that liberals can relish only in the very narrow sense that a specific legislative legacy of the Obama administration has survived.  In a broader sense, this case represents a significant Commerce Clause precedent limiting congressional power. It is an irony for liberalism that nobody will ever cite the majority opinion in NFIB v. Sibelius for a vision of the Commerce power expansive enough to reach the mandate the decision upholds. They will cite it, rather, for the opposite proposition—that the Commerce power is limited and that Congress has to think hard about the limits of its authority when it enacts a program like this one.

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