SCOTUS Acrobatics: The Majority Opinion

I start to like Chief Justice Roberts more and more... there's a lot to talk about in his majority opinion (from what I'm seeing, Roberts wrote the majority opinion, Ginsberg concurred and Scalia, Kennedy, Thomas and Alito dissented with Thomas added a short dissent on to that as well. So parsing this is going to be a long process.)

But...

Right from the start, Chief Justice Roberts makes it clear, he doesn't care about the law itself or the policies behind it- he's just interested in whether the challenged provisions are constitutional. This sets up a nicely 'determined not to be ideological at all' tone that really makes his opinion read as a clear-eyed, detailed discussion of the Constitutional issues at hand. This is a no-bullshit opinion and I like that- and there were several things in there that I found to be extremely interesting.

I like his view of Federalism. He meanders a bit through a discussion of federalism before plunging into the nitty-gritty of the decision but a couple of things popped out right away. Roberts takes the position (rightly) that the Federal government's powers as restrained under the Constitution. What got my attention was this 'graph:

The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government— punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Gov- ernment, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000).

Under this definition then, unless states are constitutionally prohibited from doing something, they have a far greater latitude in policy making on their level than the Federal government does on its level. (So, if say Vermont wanted to go further than the ACA and go for a full single payer system- they probably could.)

Eventually, he moves on to tackle the two main issues at hand. First, the idea that the mandate was constitutional under Congress' power to exercise the Commerce Clause (basically they can regulate interstate commerce.) Roberts' main issue was that this would essentially give Congress the power to regulate economic inaction as well as action- and that he had no trouble knocking over.

Construing 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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

In other words, that's waaaaaaaaaaaaaay too much power for Congress to handle. No trouble knocking that over- but here's where I'm less clear on how this is supposed to work: (There are a few legal blogs, Althouse amongst them who are busy pouring over this- and they're starting to mention this.) If the individual mandate is levied as a tax for those who don't want to buy health insurance, how does this lower costs? Originally, it was the lynch-pin of the whole act to try and cut down on cost shifting but if the penalty is going to be cheaper than buying health insurance, rational consumers are just going to pay the penalty. And the insurance companies will have these huge mandates to cover and no way to pay for it. This decision preserved the ACA and slapped down Congress for overreaching which is what the Court is supposed to do. But I'm not clear on how costs are going to go down now.

Maybe I'm crazy- maybe there's something I'm missing.

Anyway: on balance, this is a good opinion in my book. Doesn't get bogged down in the politics and the split decision I think restrains overreach by Congress and sets up some limits on how they do this while acknowledge that Congress has the impetus to do something to begin with.