TightWind is written by Kyle Baxter. Stay Hungry. Stay Foolish.

Today, the Supreme Court upheld ACA and the mandate as constitutional in a 5-4 decision, with Chief Justice John Roberts providing the swing vote. If you are unfamiliar with the case, Democrats passed a health care reform bill in 2010 that requires nearly all Americans to purchase health insurance or face a penalty for not doing so.

The issue is whether Congress has the power to compel individuals to purchase a good. The Government argued that Congress does, based on the Commerce Clause, which provides Congress with the power to regulate commerce between the states. Secondly, the Government argues that the penalty is not really a penalty at all, but rather a tax—and thus falls within Congress’s broad power of taxation.

Challengers argued that because ACA compels individuals to purchase health insurance, there is no economic activity to regulate, and therefore it is unconstitutional based on the Commerce Clause. In today’s decision, the Supreme Court agrees. John Roberts writes:

The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous. For example, the Constitution gives Congress the power to “coin Money,” in addition to the power to “regulate the Value thereof.” … If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary. The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated.

That is, to regulate economic activity, there must be activity to regulate. The Government argued that regulating economic non-activity is constitutional because choosing not to purchase health insurance results in higher insurance prices for those who do purchase it, and since it therefore affects interstate commerce, it can be regulated. This argument is informed by the 1942 case Wickard v. Filburn, where a farmer was penalized by the federal government for growing wheat for personal use in excess of his quota. Quotas on wheat production were instituted to stabilize the price of wheat. In this case, the Government’s penalty was upheld under the Commerce Clause because Filburn’s excess wheat production meant that he would purchase less wheat from the market; in the aggregate, this would lead to a reduction in overall demand for wheat and thus in the price. Therefore, the Court ruled, the penalties were regulating interstate commerce.

Proponents of the individual mandate argue that choosing not to purchase health insurance is much the same as choosing to produce more wheat for personal consumption: it affects the price of health insurance and therefore compelling individuals to purchase health insurance is justified by the Commerce Clause. The Court disagrees. Roberts writes for the majority that the Government’s theory goes much beyond the precedent set in Wickard. Roberts argues that in Wickard, Congress is allowed to regulate affirmative activity, not inactivity. He further argues that allowing Congress to “regulate inactivity” (compel individuals) would fundamentally change our relationship with the Federal Government:

While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U. S. 183, 196 (1968). The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” The Federalist No. 48, at 309 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.

Roberts is arguing that, if the Government’s theory is correct, there would be no limit at all on Congress’s power. Congress could compel individuals to do whatever it is Congress wishes. Roberts is absolutely right, and it is heartening that something so obvious—that the power to regulate commerce does not mean the power to force individuals to do whatever the Government pleases—is now precedent. The Commerce Clause is not and was not intended to be a grant of nearly unlimited power to Congress.

Roberts turns to the Government’s secondary argument that the ACA’s penalty for failure to purchase health insurance is actually a tax. Roberts writes:

The most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance. 26 U. S. C. §5000A(a). Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. … [But] The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.”

That is, ACA’s penalty is, if read most naturally, a penalty, but the Court must consider all other possible constructions of the law as well, and if they are reasonable, then it is constitutional. Roberts goes on to argue that the penalty has similar characteristics to a tax, can be interpreted as such, and is therefore constitutional.

My interpretation is Roberts reached to uphold ACA in order to avoid a conflict with the executive and legislative branches. Roberts apparently believes it is a fair interpretation of ACA’s penalty. I do not, and I believe ruling the mandate or the entire law unconstitutional would have been a principled decision, as Justices Scalia, Thomas, Alito and Kennedy believe.

But this is what a restrained and non-activist court looks like: it defers to the elected branches of government. Roberts wrote early in the Court’s decision that “It is not our job to protect the people from the consequences of their political choices,” and as his decision shows, he firmly believes it. His decision to side with the liberal justices in upholding ACA says that Roberts believes the Court’s role is not to make policy, but to invalidate egregious violations of the Constitution.

I am disappointed the mandate remains law and, more dangerously, that the Federal Government’s power of taxation has been held up as an end-run around the Commerce Clause’s limitation Roberts explained so well. But we, the people, have the means to eliminate laws we find noxious through our elected officials. Many have hoped that the Supreme Court would rule the mandate unconstitutional because they have little faith in Congress’s—our elected officials—ability to get anything of any importance at all done, and I have little doubt many of those people are angry with the Court’s decision today. But that is not the Court’s concern, nor their role. Their job is not to take up slack when our elected officials are shirking their duties, and it is not only unfair, but counter to our system of government, to expect the Court to do so.

Today’s decision is a complex one. The Court placed a firm limit on the extent of the Commerce Clause, which is an absolute victory. They also, unfortunately, validated using the power of taxation to compel individuals to actions the Government prefers. But what it also showed—and what I think will be remembered about this decision—is that our system of government is well-designed and resilient. For all the talk on the left of a coup by the right-wing through unelected judges, one of the most derided of them just sided with the Government in a highly partisan and divisive case. What does that say about the Supreme Court’s ability to fairly adjudicate cases?