Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Roberts Rules

Timothy Sherratt


July 13, 2012

By Timothy Sherratt

A longer version of this article originally appeared in Faith + Ideas =, an online publication of Gordon College.

Chief Justice John Roberts took center stage at the Supreme Court last month to uphold the Affordable Care Act, our country’s new health care law. With two tie-breaking votes, he sided with his colleagues who are usually perceived as “liberal” to declare the law constitutional, but also with his colleagues usually perceived as “conservative” to reject the government’s principal argument in support of the law. Let me explain.

When the Obama Administration defended the Affordable Care Act in court last March, the government argued that the Constitution’s “Commerce Clause” gives Congress the power to require everyone to purchase health insurance—the so-called “individual mandate.”

The Commerce Clause empowers Congress to regulate commerce “among the several states.” Over time, this power has expanded. As long as there is a connection to interstate commerce, Congressional acts are usually upheld. Not this time. Roberts and the four conservative-leaning judges concluded that approving a mandate to purchase health insurance gives Congress too much power.

Think about it this way: When people buy a product, Congress has the authority to make laws to ensure that the transaction is fair. But Congress cannot make anyone buy that product in the first place. That’s the line that Congress crossed by requiring people to buy health insurance. As Roberts put it, “Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.”

Nonetheless, the Chief Justice found the individual mandate constitutional by turning to a key principle underlying the separation of powers: If the Supreme Court can find a way to uphold a law, it should do so. And so, quoting Justice Oliver Wendell Holmes, Roberts wrote, “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

His reasoning is straightforward. Lawmaking is the domain of the people’s representatives, not the Court. The judges are not to strike down a law on the grounds of its wisdom as policy. They should only strike down a law that violates the Constitution. And a law that would be invalid based on one part of the Constitution may still be valid based on another.

In oral argument, the government had also argued that the mandate could be understood as a form of taxation. As Massachusetts’ residents know, those refusing to purchase insurance under our Commonwealth’s mandate pay a penalty assessed on their state tax form. The Affordable Care Act works the same way, and Chief Justice Roberts ruled that “penalty” should not be equated to a fine but to a tax.

Under Roberts’ ruling, the Affordable Care Act taxes the decision not to carry health insurance, which is constitutional—simply the government’s use of its powers to raise revenue.

But is the Chief Justice’s decision constitutionalism or conjuring? Or prudence? There is certainly a prudential dimension to the ruling. Had the law been struck down, state governments, insurance companies, hospitals and, most important, citizens, would have faced considerable—and expensive—uncertainty.

Yet Roberts’s decision also reflects a firm commitment to a limited federal government of distinct powers. When Congress acts, it must justify its action. And Congress is now on notice that the Court will police those limits. This part of the ruling will raise new questions over old federal initiatives, everything from voting rights to environmental laws. It will resonate for years to come.

Critics have been quick to suggest that Roberts’ ruling limits little in the end. Will every new individual mandate from the supporters of big government be framed as a tax in order to pass constitutional muster?  This is an easy question to answer: What politician do you know who wants to campaign on raising your taxes?

Of course, the mandate’s survival may have cultural significance in the larger debate about the appropriate role of government. All Americans want government intrusion kept to a reasonable minimum. An unrestrained Congress is indeed “not the country the Framers of our Constitution envisioned.”

But I suspect most Americans also want to live in a country where family and friends cannot be denied health insurance due to medical happenstance.

I believe Roberts’ ruling strikes the right balance. Once in a while, my liberty is everyone’s liberty and is worth the price of admission.

—Timothy Sherratt is a professor of political science at Gordon College in Wenham, MA.

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