Roberts at 10: Federal Power—It’s Complicated

When the Supreme Court hears a big case on a controversial issue, everyone thinks they know what to expect: a 5-4 decision with Justice Kennedy casting the deciding vote.  But when the Supreme Court announced its decision about the constitutionality of the Affordable Care Act’s individual mandate in National Federation of Independent Business v. Sebelius (NFIB), there was a different 5-4 split—indeed, one that Court watchers almost never see: Chief Justice Roberts joined with the Court’s more liberal members to uphold the mandate.  At the time, Roberts was lauded by many on the left for upholding the signature legislative achievement of President Obama’s first term.  

But now, as we take a look back at NFIB as part of our year-long examination of John Roberts’s first decade as Chief Justice, it seems fair to say that the story of his views on federal power is a complicated and evolving one.  As we discuss in the longer snapshot on this issue, the complicated nature of the story is reflected in NFIB itself: at the same time the Court upheld the individual mandate as a permissible exercise of Congress’s taxing power, it invalidated, as written, the statute’s expansion of Medicaid, and Chief Justice Roberts wrote at length about the limits of Congress’s power under the relevant provisions of the Constitution.  In short, John Roberts’s views on federal power are more conservative than he let on at his confirmation hearing (and perhaps even more conservative than his vote in NFIB suggests), but what exactly that will mean for future cases remains to be seen. 

At his confirmation hearing, then-Judge John Roberts downplayed the significance of the Supreme Court’s recent cases constricting the scope of Congress’s power under the Commerce Clause.  As he noted then, the Supreme Court has “recognized extremely broad authority on Congress’s part, going all the way back to . . . Chief Justice John Marshall.”  Discussing Congress’s spending power, he also observed that the Congress has the “authority” to attach conditions to the receipt of federal funds as “a general proposition.”  Comparing Judge Roberts’s statements to Chief Justice Roberts’s decisions, it seems clear that although Roberts may not have the fervor for continuing the states’ rights revolution that his predecessor (and former boss) Chief Justice William Rehnquist did, his views on the scope of Congress’s power under the Commerce Clause and the Spending Clause are nonetheless conservative. 

To be sure, Chief Justice Roberts made the same comment about the breadth of Congress’s Commerce power in his decision in NFIB that he did at his confirmation hearing, writing that Congress has “broad authority under the [Commerce] Clause,” a point the joint dissenters seemed loathe to acknowledge.  But Roberts nonetheless found himself unable to uphold the individual mandate as an exercise of that “broad authority.”  Roberts also wrote at length about how Congress’s power “must be read carefully to avoid creating a general federal authority akin to the police power,” a concern he subsequently echoed in a separate writing in another case.  The Chief Justice’s writings in these cases evince a real anxiety about the scope of the federal government’s power under the Commerce Clause and, in particular, the breadth of the federal regulatory state.

The Chief Justice’s anxiety about the scope of federal power was also manifest in his decision in NFIB that the ACA’s expansion of Medicaid was unconstitutional on Spending Clause grounds.  The Court’s decision was significant because it held “for the first time ever,” as Justice Ginsburg emphasized, that an exercise of Congress’s spending authority was unconstitutionally coercive.  It has also had a dramatic impact on the ground: as a result of the decision, 21 states have opted not to go forward with the Medicaid expansion, leaving millions of people uninsured who would have otherwise been covered by Medicaid.  What exactly the long-term jurisprudential impact of the decision will be is unclear—Chief Justice Roberts declined to “‘fix the outermost line’ where persuasion gives way to coercion”—but it seems fair to say that we  no longer live in a world in which Congress can regulate free of concern that its Spending Clause legislation will be struck down. 

To his credit, the Chief Justice has not seized on every opportunity to restrict Congress’s power, as we discuss in the snapshot itself.  But it is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state, as has been manifest in his writings in other areas.  And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts’s views on the Commerce Clause and the Spending Clause aren’t exactly what Judge Roberts presented them to be at his confirmation hearing in 2005.  Just how different they are—and what that will mean for future cases involving federal power—remains to be seen.  But supporters of the Affordable Care Act shouldn’t give Chief Justice Roberts too much credit for his decision in NFIB: it’s complicated.

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