The Strangely Particular Ruling of Mr. Chief Justice Roberts

As I continue to read the section in Chief Justice John Roberts' opinion in NFIB v. Sebelius, I'm struck by how oddly particular it is. Here's what I mean by that: with regard to both the individual mandate and the Medicaid expansion, Roberts agrees with one of the other two opinions about the relevant constitutional principles. In the first case, he agrees with Scalia and the conservatives that mandates on inactivity are invalid, while taxes on inactivity are valid. In the second case, he agrees with Ginsburg and Sotomayor that requiring states to enact certain programs on pain of losing the federal money that would have paid for those programs is acceptable, while requiring states to enact programs on pain of losing other federal monies that currently pay for other programs is not. But he and Scalia disagree over the simple issue of whether the individual mandate can be legitimately read as a tax, and he and Ginsburg disagree over the simple issue of whether the Medicaid expansion can be legitimately understood as a modification of the old program or must be seen as a new program altogether. I would say that means we shouldn't pay much attention to the results of this ruling (I mean, they clearly matter in a short-term policy way, but in a longer-term constitutional-jurisprudence way), except that labeling distinctions like these are important. Roberts affirmed, after all, that Congress can impose financial penalties on inactivity that it doesn't like, for essentially any reason whatsoever. It seems to me that one could create the Broccoli Non-Consumption Mandate, a modest fee collected by the IRS in the normal fashion and worth a small fraction of one's income, and Roberts would be bound to say yes, this is a valid exercise of the taxing power. Likewise, the Medicaid ruling signals a greater willingness to scrutinize whether modifications of federal programs are sufficiently modest as to avoid constituting a brand new program. It's kind of a weird ruling in placing its emphasis so squarely on these naming issues, rather than on the underlying principles, but I think the appropriate response to a weird ruling like that is to pay close attention to the weirdness.