President Obama and supporters of a greater government role in providing and financing health care were overjoyed at last week’s Supreme Court decision to uphold the Affordable Care Act. A closer reading of Chief Justice Roberts’ opinion should dampen that enthusiasm. The ACA still faces political challenges, and the Court has erected barriers to future expansions of federal social policy.
Roberts upheld the ACA by finding that the penalty Congress imposed on people who do not purchase health insurance under the individual mandate can be construed as a tax, which is within Congress’ constitutional power to collect. While this ruling put the future of the ACA back in the hands of the political branches of government, and helped preserve the Court’s integrity as an institution above partisanship, some aspects of Roberts’ reasoning are difficult to understand. If the individual mandate cannot be justified under Congress’ power to regulate interstate commerce (the principal argument made by the federal government in defending the ACA), how can Congress collect a tax to enforce a mandate that does not fall within any of the powers of Congress enumerated in the Constitution?
By not ruling the ACA unconstitutional, the Court left the future of “Obamacare” up to the voters, and thus to the president and Congress to be elected in November. If Obama is re-elected and the Democrats hold on to their majority in the Senate, Republican efforts to repeal the ACA will go nowhere. Even if Mitt Romney is elected president and the Republicans win a Senate majority, full repeal is unlikely, because Senate Democrats would still have enough votes to filibuster a repeal measure.
The more likely scenario under Romney and a Republican Congress would be that funding for many of the programs established by the ACA, such as expansion of Medicaid and subsidies for participants in the state-run health benefit exchanges, would be reduced, leaving those programs without the money needed to be effective. This would be a concern for the Shumlin administration. Much of what Vermont wants to do in establishing the exchanges and then moving toward a single-payer system depends upon new federal dollars.
Chief Justice Roberts’ decision places two important hurdles in the way of attempts by future presidents and Congresses to expand the federal role in social policy. Roberts joined Justices Scalia, Kennedy, Thomas and Alito in finding that Congress’ Commerce Clause powers do not extend to regulating “inactivity,” an individual’s decision not to purchase health insurance. Although the ACA was not struck down on these grounds, a majority of the Court has clearly stated that there are significant limits to Congress’ ability to use the Commerce Clause to expand the powers of the federal government.
The five justices appointed by Republican presidents, plus Democratic appointees Justices Breyer and Kagan, also held that the penalty Congress wanted to impose on states that did not agree to participate in the ACA’s expanded Medicaid program — cutting off all their Medicaid funding, for the existing program as well as the expansion — was impermissibly coercive. This is the first time in the post-New Deal era that the Supreme Court has struck down conditions Congress has placed on federal grants to state governments. Seven of the nine justices see some limits on Congress’ ability to use its Spending Clause powers to direct the policy choices of state governments.
The ACA survives, at least for now. But the Court’s decision in the health care case will make it much more difficult for future Democratic presidents and Congresses to pass sweeping social legislation.
Eric L. Davis is professor emeritus of political science at Middlebury College.