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In Sidestepping Commerce Clause, Ruling Shifts Focus to Scope of Congressional Power

By John Gramlich, CQ Staff

Chief Justice John G. Roberts Jr., siding with the liberal wing of the Supreme Court, sidestepped a potentially sweeping ruling on the scope of the Constitution's Commerce Clause by upholding the health care overhaul's requirement that most Americans buy insurance under Congress' taxing powers instead.

But the high court's ruling—combined with its decision limiting the law's expansion of the Medicaid program—still could have broad implications for the exercise of congressional authority, according to legal experts on both sides of the ruling.

In siding with the court's liberals, Roberts sought to find a middle ground in a complex and polarizing case, court observers said. Jeffrey Rosen, a law professor at George Washington University, said the chief justice "chose to favor bipartisanship over polarization" in pursuing a narrow decision that does not broadly redefine the role of Congress or the reach of the Commerce Clause.

But some conservatives warned that the court's reasoning that the health insurance mandate is constitutional as a tax increase—rather than as an example of economic activity—sets a dangerous new precedent that gives Congress a green light to meddle in Americans' lives.

Democrats and some of the court's liberal justices, meanwhile, warned that Roberts had, in fact, raised new questions about the scope of the Commerce Clause by refusing to accept the insurance mandate as a legitimate exercise of congressional power under that provision. And they predicted that the justices' rejection of the Medicaid expansion would invite new legal challenges to other federal laws that states find objectionable.

New Taxing Powers

Utah Republican Sen. Mike Lee, a constitutional law expert and former clerk to Justice Samuel A. Alito Jr., said that upholding the law's core insurance mandate under Congress' taxing authority gives lawmakers license to regulate Americans' lives in new ways, so long as they attach a tax as a penalty.

The ruling "can be fairly characterized as something that could significantly expand Congress's coercive authority, because Congress can now mandate even individual conduct and punish failure to comply with that mandate with a tax," Lee said.

"The saving grace," he said, "is that the taxing power comes with significant political consequences," and he said he expects Democrats to pay a political price for what the court has now formally deemed a tax increase.

Republicans swiftly sought to capitalize on the stigma associated with a tax increase, issuing statements characterizing the insurance mandate as a huge tax hike.

Commerce Questions

Democrats generally were happy with the ruling, but some liberals said it could have problematic legal ramifications for their own interests.

Justice Ruth Bader Ginsburg agreed with the decision to uphold the individual mandate but disagreed with the reasoning behind it, in which Roberts ruled that Congress cannot regulate "inactivity"—the decision not to buy health insurance—as an economic "activity."

"I agree with the chief justice that Congress' power to tax and spend supports the so-called individual mandate or minimum coverage provision. But I would make that an auxiliary holding," Ginsburg said in prepared remarks from the bench. "As I see it, Congress' vast authority to regulate interstate commerce solidly undergirds the [health law]."

By ruling that Congress does not have the authority to force people to buy health insurance, Ginsburg said, the court has in fact redefined the Commerce Clause. "It is a stunning step back that should not have staying power," she said.

Nan Aron, president of the Alliance for Justice, a liberal legal advocacy group, said in a statement that the court's holding on the Commerce Clause amounts to a "ticking time bomb" that could call into question Congress' ability to regulate a broad range of activities that, until now, it has been free to regulate.

"The five conservative justices may have signaled that they are prepared over time to undo or limit a host of economic and social policies that are rooted in long-established federal powers to regulate interstate commerce," Aron said.

The "true legacy" of the ruling, she said, "may become apparent in future cases as a five-justice majority votes to restrict Congress' power to regulate business, enact environmental laws, protect the health and safety of workers and consumers, preserve civil rights and prevent discrimination."

Maryland Democratic Sen. Benjamin L. Cardin said the court's complex series of concurring and dissenting opinions in the case may mean that the reaches of congressional power—particularly as it relates to economic regulation—have not been settled.

"It's clearly not the last word as to what Congress can do under the Commerce Clause," Cardin said.

Ginsburg, meanwhile, said the majority's ruling that Congress cannot force states to comply with an expansion of Medicaid will give the states much more latitude to challenge federal laws they do not like. The ruling "invites assaults on national legislation irreconcilable with the framers' anticipation," she said.

A Forceful Minority

The four conservative justices who disagreed with the controlling opinion in the case—Alito, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas—made clear that they viewed the overall ruling as judicial activism.

Kennedy, in dissenting remarks from the bench, called it a "vast judicial overreaching" that goes to great lengths to call the individual mandate a tax even though the government itself has argued that it is not a tax.

But Walter Dellinger, a former solicitor general under President Bill Clinton, said the most notable aspect of the ruling as it relates to congressional power is that four justices would have struck down the law in its entirety.

"What is breathtaking is how sweeping the restrictions on congressional authority would be if the position of four justices had prevailed in that case," Dellinger said. "The court is just one vote away from severe limits on the authority of Congress."

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