Read Between the Lines


On June 28, the Supreme Court released its most anticipated decision since Bush v. Gore in 2000. The Roberts Court has been depicted as a bulwark of conservatism. However, the recent decision complicates these allegations. It was no surprise that the vote of the Court in National Federation of Independent Business v. Sebelius would be 5 to 4. Yet the “swing vote” came as a surprise. Chief Justice John Roberts joined Justices Breyer, Ginsberg, Kagan, and Sotomayor in voting to uphold the controversial Patient Protection and Affordable Care Act. Without understanding the ruling, response to the Court’s decision should run along party lines: The Democrats were victorious. Paradoxically, however, the Supreme Court’s opinion is still a “sleeper victory” for conservatives.

In the oral arguments for NFIB v. Sebelius, the government claimed the Affordable Care Act (ACA) was protected under Congress’ right to regulate commerce. Yet, if a citizen had not entered into any insurance, there was no action to regulate. And, according to the Court, the “power to regulate commerce presupposes the existence of commercial activity to be regulated.” Roberts explicitly limits the use of the Commerce Clause in supporting legislation which can be seen as an overreach of federal powers. According to the Chief Justice, “[c]onstruing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” The holding is only the third time since the New Deal in which the Court has found that Congress overstepped its bounds. Chief Justice Roberts’ express limit of the Commerce Clause is a victory for conservatism.

While the diminution of the Commerce Clause suggests an overly expansive authority of Congress to justify legislation under the general power to tax, the transfer of expanded power (from Commerce Clause justification to Taxing and Spending Clause justification) will deter government aggrandizement. The Supreme Court held Section 5000A of ACA constitutional “because it can reasonably be read as a tax.” Although Congress specifically labeled payment to the IRS for not complying as a penalty, from here on, any payment remotely related to the IRS will be read as a tax. This proves disastrous to increasing the federal government’s power. The Commerce Clause’s allowed “taxes” to be disguised as regulations, protecting elected officials whose constituents would oppose new taxes. Yet with that safeguard stripped, future Congressional officials will be unable to beguile citizens with labels. Thus, acts of Congress are now more answerable to the people.

Along with reining in the Commerce Clause, the liberal justices aided Roberts in reviving Federalism. Federalism is a defining feature of our Constitution, dividing sovereign powers between the federal and state governments; this doctrine has been a target of progressive legislation because it impedes increasing the size of the national government. Under the Warren and Berger Courts, the federalist doctrine was muted as the national government swelled. Surprisingly, the Supreme Court in NFIB v. Sebelius, ruling 7-2, declared the federal government cannot withhold existing funds from state programs if the state opts out of the expanded Medicaid provision. The opinion of the Court highlights the victory for States’ rights: “As a practical matter, that means States may now choose to reject the expansion…Congress has no authority to order the States to regulate according to its instructions.”

Following the Citizens United decision in 2010, the Roberts Court was invariably labeled partisan and many liberals accused the justices of political activism. The health care ruling shows that this criticism holds no water. The ruling handed down from the Court is viewed by Democrats to be in their favor. But, the ruling in Citizens United places a strict limit on enacting campaign finance legislation whereas NFIB v. Sebelius only upholds a law which can be repealed by Congress at any given moment. The Court wisely acted in upholding the law because the burden of repeal has been relegated to the legislative branch. Such a transfer of duty enlarges the legitimacy of the Court while advancing a conservative interpretation of the Constitution.

Though the Court’s ruling was a victory for the Obama administration, especially four months before the presidential election, the opinion does not endorse liberalism. Chief Justice Roberts performed his duty as a Supreme Court Justice, but also acted as a steward of the Court. For the moment, the Chief Justice silenced criticisms of his court. Though some of the important conservative victories remain dictum rather than holding, it is up for the Roberts Court, lower courts, and all future courts to abide by the precedents established in NFIB v. Sebelius.