It’s been a few days since the United States Supreme Court issued its surprise decision upholding the Affordable Health Care Act. At this point, the bones have been pretty much picked clean in terms of legal interpretation, although the psychological analysis of Chief Justice John Roberts is ongoing. (A dear friend suspects hizhonor may be dipping into the Betty Draper morning wine.)
I’ve read the ruling, and, although I have my own pet theories as to why the Chief Justice made an apparent 11th-hour switcheroo to side with the more liberal justices, I think it’s more interesting to consider how the health care decision tracks with another recent opinion regarding broadcast indecency and the FCC’s ability to regulate it.
In both cases, the Roberts court punted on a major constitutional concern in favor of a procedural interpretation of a separate and somewhat unrelated provision.
In health care, it was an awkward admission of the possible unconstitutionality of the law under the Commerce Clause, coupled with an even more awkward upholding of the legislation under Congress’ ability to levy taxes.
In broadcast indecency (which examined “fleeting fucks” on awards shows and a bare butt on “NYPD Blue”), the court refused to rule on the broadcasters’ First Amendment arguments, instead relying on a clause in the Fifth Amendment regarding due process.
I think both rulings are a glimpse into the psyche of the Roberts court, and may, along with other decisions with which I am less familiar, provide observers with something of a yardstick for future decisions. Or not!
Allow me to go into a bit more detail. With indecency, the court agreed to hear a matter that many of us thought had already been settled. There was no disharmony at the lower court level. And SCOTUS had already decided one of the cases, ruling that the FCC’s indecency policy was “vague and arbitrary,” all the while refusing to examine the broadcasters free speech claims. Instead, they kicked the issue back to the Second Circuit, which said, “yep, them rules are unconstitutional.”
For some reason beyond my understanding, the Supremes decided to take up the case again, this time rolling in a couple of other high-profile indecency actions in which similar issues were raised. But instead of ruling on the broadcasters’ speech rights — which to me seems like the whole reason you agree to hear the goddamn case — the court went with a matter-of-fact interpretation of the Fifth Amendment’s due process clause, which protects people (and corporations, which are, of course, people) from being subject to rules that they don’t understand and therefore to which they cannot be expected to comply. Justice Anthony Kennedy wrote the majority opinion:
Regulated parties should know what is required of them, so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way…
…A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.
That’s all fine and good, but why go through all the high-falutin’ exercise of making it seem like the court might invoke a bedrock constitutional principle, only to rule on the narrowest of grounds? The result is essentially the same. Here, the broadcasters fines are tossed out and the FCC is chastised for its capricious policies. But the fact that SCOTUS did not want to affirm the First Amendment rights of the broadcasters is telling: this is not an activist bench. Or is it?
By now, you know the story with the Affordable Health Care Act ruling. There, too, the court sidestepped the most interesting — and controversial — question at the heart of the case: whether Congress has the ability, under the US Constitution, to compel citizens to purchase a product from the private marketplace. (Remember, this is “passive commerce,” meaning it’s not like auto insurance, where you choose to drive a car, and are therefore subject to interstate regulation). I always felt that Obamacare would face tough constitutional scrutiny under the Commerce Clause, which is why I believe single payer (shielded by the “general welfare” provision) would have been more constitutionally-bulletproof. At any rate, the court did another head-fake, this time with Roberts talking smack about the Commerce Clause in a hat tip to all the anti-federalist freaks, while skipping the commerce concerns in favor of upholding under Congress’ taxing authority.
It’s a stretch, but it’s easy to see why Roberts made the call: allowing the individual mandate through the Commerce Clause would have, in his view — as well as in those of his conservative peers — expanded Congress’ power. What we have instead is an acknowledgement of a democratic process that gave rise to the legislation in the first place, coupled with a classic right wing undermining of a constitutional provision that underpins practically every federal program since the New Deal.
But we get to keep Obamacare.
The other conservatives on the bench did not seem to share Roberts’ view that the law could be upheld under tax code. Dissenters Antonin Scalia, Kennedy, Clarence Thomas and Samuel Alito do not mince words:
The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes. That carries verbal wizardry too far, deep into the forbidden land of the sophists.
Sure, dudes, but the law stands. It just stands… weirdly.
So is this an activist court or a moderate court? Anybody have a sense of whether other recent decisions, such as the immigration ruling track with my thesis? How do will these verdicts impact electoral politics at the state and federal level? These are questions for which I have no answers, but would love to hear yours…