The Equally Obligatory Prognostication Piece

My previous post discussed my opinion of the Supreme Court's ruling in National Federation of Independent Business v. Sebelius on the merits. This post is about discussing the likely impact of Chief Justice Roberts' compromise ruling on jurisprudence going forward. It's going to be shorter than the last one. The first thing to say is that it matters at all until a new Justice is appointed in a way that shifts the partisan balance of the Court. One liberal replacing one of the four conservatives, or one conservative replacing one of the four liberals, and the nuances of Roberts' ruling become unimportant. But assuming the Court stays the same for a while, and that each of the Justices currently on the Court sticks to their opinions from this case, here are a few things I think we can say about how much the Chief's efforts to limit Congress while upholding the law will actually change things.

The ruling regarding the Medicaid expansion strikes me as similar in some ways to Bush v. Gore: it's a completely ad hoc ruling designed for a particular temporal circumstance, and it won't really be relevant in future cases. I don't think it's really going to create a lasting precedent to the effect that Congress is basically hamstrung in its ability to change federal programs that are run in tandem with the states. Logically, if what we're worried about is the strength of the coercion Congress uses against the states in making them adopt its favored policies, then it should be that a proposal to start up a new program giving states just as much money as Medicaid gives them now, but with conditions attached that states had to follow if they wanted to see a single red cent, is just as suspect as an alteration to an existing program. But that's an unacceptable result, and not one that the Court would ever consider reaching. So I think this part of the ruling will sort of fade away quietly, causing a modest nuisance for this particular alteration of federal policy but not being of much import thereafter.

So, what about this idea that the Commerce/Necessary and Proper Clauses wouldn't have been sufficient to uphold the individual mandate? Well, the trouble with thinking this will be a big deal is that they did in fact uphold this law. Something like an individual mandate structured like this one is within Congress' enumerated powers. So the only thing Roberts really suggested would be outside of those powers, newly in this opinion, would be something similar to the mandate in its relation to the Commerce Clause but, unlike the mandate, not constructable as basically a tax. And such a thing is...? I don't know. I can't honestly think of anything that would fall into that little crack that Roberts tried to open in Congressional power. While there's no particular reason to think that this "regulating inactivity" thing conservatives have invented recently has any merit as a constitutional principle, it's certainly true that regulation of inactivity--aside from numerous tax preferences for activity as opposed to inactivity!--has not been something Congress has often felt compelled to do. And anyway, if it wants to do so, it may, so long as the penalties are expressed as a fine payable to the IRS.

So I really have no idea what the statute would look like that the precedent Roberts set today would deem unconstitutional, that wouldn't have been unconstitutional under yesterday's caselaw. Perhaps something similar to this mandate with criminal sanctions instead of a simple fine would be in that category, and of course quite honestly I'm okay with that sort of law being found unconstitutional somehow. But all in all I can't help avoiding the conclusion that, for all of Roberts' craftiness in joining the liberals and sneaking all of these limitations into his opinion despite upholding the law, he isn't actually shaping the course of future jurisprudence that much. Another way to put that is that this case just wasn't all that terribly important, considered in terms of the long arc of constitutional law. For one thing, it's obvious that the law is just sort of easily constitutional. For another, the most that's ever been claimed against the validity of this law is that, because it wasn't explicitly called a tax, it's outside the taxing power. But that wouldn't limit Congress going forward any more than Roberts' actual opinion upholding the law does: under both scenarios, Congress may do through the taxing power what it mayn't do through the Commerce Clause alone. The policy and political stakes were high, in that striking down this behemoth of social welfare legislation would've obviously changed the world circa 2015 quite a lot and there are obvious implications for the 2012 Presidential election. But as a constitutional law case, it's not that big a deal.