Rule of Law

The ACA Ruling and the Tea Party’s Demise

The dispute among the Justices that played out in the 192 pages of opinions yesterday boils down to a simple but profoundly important question: does the Constitution establish a federal government with the power necessary to solve truly national problems like the health care crisis? Justice Ginsburg’s opinion on behalf of the Court’s four liberals declared the answer to be an emphatic “Yes.” The Court’s four dissenting conservatives, led by the Court’s usual swing Justice, Anthony Kennedy, said “Hell no.” In a surprise to most observers, Chief Justice Roberts agreed, more or less, with the Court’s liberal wing, and cast the deciding vote upholding the Affordable Care Act and letting it take effect.


Justice Ginsburg’s opinion begins with a history lesson about what brought the Framers of the Constitution to Philadelphia in the first place. Citing letters by James Madison and George Washington written in the run up to the Constitutional Convention, and Resolution VI, adopted by the Convention itself to guide the delegates drafting the Constitution’s specific list of powers, Justice Ginsburg argued that the Constitution provides the national government the power to pass legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.” Armed with a plethora of facts that established both the national interest in solving the health care crisis, and the inability of the states to solve the health care crisis on their own, Justice Ginsburg opined that the Affordable Care Act (ACA) was easily constitutional.


The Court’s four dissenting conservatives departed sharply from Justice Ginsburg’s analysis, emphasizing what they called the “structural limits” on the powers of the federal government, “notably, the restraints imposed by federalism and separation of powers.” Finding those structural limits “central to liberty,” and violated by the Act’s individual mandate and expansion of Medicaid, this bloc of Justices would have invalidated the ACA in its entirety. Taking a Shermanesque march through the Act’s 900 pages, the dissenters first opined that all of the Act’s “major provisions” were so related to the mandate and the expansion of Medicaid that none could be saved or “severed” from the constitutionally infirm parts. Then the dissenters opined that the Act’s “minor provisions” were like Christmas tree ornaments, and that”when the tree no longer exists the ornaments are superfluous.”


Chief Justice Roberts’ lone opinion in the middle of the Court sounds a fair amount like the dissent — emphasizing the limits on federal power as much as the broad scope of those powers — but it acts nearly identically to the opinion by Justice Ginsburg. Specifically, while the dissenters struck out aggressively to prevent any part of the ACA from going into effect, Chief Justice Roberts started with a “general reticence to invalidate the acts of the Nation’s elected leaders.” Building from this presumption of validity, Roberts then decided that (1) while the individual mandate exceeded Congress’ power under the Commerce Clause, it was a valid tax and thus constitutional under Congress’ power to tax and spend for the general welfare, and (2) the expansion of Medicaid was also constitutional as long as states that choose not to participate in this expansion do not lose their entire Medicaid funding as a consequence.


The technical and legal details of these two rulings are fairly complex — explaining why so much ink was spilled yesterday — and commentators are certainly right to warn that certain language in Roberts’ lone opinion could ultimately be used by the conservative-dominated Court to work a more significant reduction in the scope of federal powers in future cases. But that potential risk should not overshadow the reality of yesterday’s ruling, which let stand what most observers agree is the most significant expansion of the social safety net since the creation of Medicaid in 1965.


For the tea party, which was built on the proposition that the Affordable Care Act is the quintessential example of an unconstitutional federal overreach, the Court’s ruling is thus an exceedingly bitter pill. Coming, as it does, from the nation’s very conservative Chief Justice, yesterday’s opinion leaves the tea party’s constitutional vision in shambles.