Chief Justice John Robert’s Ruling On Affordable Healthcare. Beware Of A Conservative Writing a Ruling Thought By Liberals To be a Victory
IS HE LIKELY TO BECOME THE REHNQUIST OF THE COMMERCE CLAUSE?
WHAT ABOUT THE “HAPLESS TOAD?”
Chief Justice Robert’s decision to vote to uphold the affordable care act and also write the opinion in a split 5-4 decision on the basis of the Tax Power may look like a victory for the millions of uninsured souls in the United States. However his limiting the bounds of the Commerce Clause and refusing to uphold the requirement that the States expand Medicaid, ruling their participation was discretionary, means the conservatives will have grounds to further limit Congressional Statutes in other areas.
First, after the ultra conservative and wrongheaded decision in Citizens United calling corporate political spending a First Amendment free speech right by “citizen” corporations which nullified long held opinions and statues that corporations had limited rights under the Constitution but did not carry the full political rights of a human citizen. Corporations had only the limited economic rights of a fictional corporate citizen needed for business pursuits like the right to enter contracts and sue to enforce them. Further corporations have shareholders who do have the rights of the human citizens contemplated by the Founders. So the Citizens decision was unnecessary and a doubling of the rights of economic entities over human citizens if one assumes that most shareholders will donate money and vote in much the same way as the corporations they hold shares in. Also corporations have spent ample amounts of money on lobbyists to carry their message to our elected officials. Obviously extending all the benefits of free speech with the ability to spend unlimited amounts to elect who that official shall be was never contemplated by the Founders or any other Court until the Roberts Court. Perhaps a CEO with a full treasury will run for political office using corporate money thus eliminating the middle man entirely. If Roberts had denied The Affordable Care Act it would have been another political decision based on a twisted interpretation of the law and the role of the Supreme Court as in Bush v. Gore and Citizens United. However sustaining the AFCA on the Taxation power when he didn’t need to is not much better as there was ample prescedent under the Commerce Clause.
If Roberts had voted with conservative Justices Scalia, Kennedy, Thomas and Alito the Affordable Health Care decision would have gone down in history as the equivalent of the Dred Scott decision which held that African Americans were not citizens and had no standing to sue under the Constitution and that blacks were chattels belonging to their masters even when they were taken to free Federal territories. Thus Roberts would have condemned millions of uninsured Americans to the bondage of living without or with inadequate medical care. Confronted with this reality he took the most conservatively prudent course although as a conservative it must have been an abhorrent result for him. Otherwise he would be characterized in history in the same manner as Roger Taney, the Chief Justice who wrote the Scott decision, on slavery.
More ever he did not sustain Affordable Health Care under the Commerce Clause as most pundits thought the Act would stand or fall. Thus he drew limits to the application of the Commerce Clause which has been the basis of upholding many laws opposed by business interests like the upholding of the Environmental Protection Act to the benefit of some localized, hitherto unheard of species of a “hapless toad.” The toad was the subject in Rancho Viejo, LLC v. Norton A case involving the Environmental Protection Act and the Commerce Clause in which he wrote a dissent. While that case was an extreme one it did validate the strength of the Commerce Clause in invoking Federal power over the States. There will be many other instances where the limitation in the Affordable Care case will also be applied i.e.: labor laws, health and safety laws and other laws coming under the Commerce Clause. The Occupational Health And Safety Act is one Act that comes to mind. That Act will be in jeopardy of being circumscribed by this ruling for example.
Limiting the Federal Governments power to compel States to expand Medicaid even when the Federal Government would pay the bulk of the cost under its Tax and Spending power was an instance of clearly limiting Federal power over the States and affirming the argument that the Constitution was only a grant of limited power to the Federal Government by the States.
Further Roberts could have avoided this by sustaining the Act under the Commerce Clause. Now the eight million people who would have been covered won’t be covered if States opt out. Twenty six states sued to invalidate the Act so it is unlikely they will participate. This will have a direct effect on commerce between the States because now those “hapless” people not covered will be encouraged to move to states that have opted into Medicaid This will have a clear impact on interstate commerce. So obviously the Commerce Clause would apply and the Act is constitutional for this reason alone. Thus the “hapless” uncovered people would have been treated at least as well as the “hapless toads.”
The mandate argument was a fiction created by the conservatives. Roberts himself proved there was no mandate saying it was a penalty enforceable by the Tax Power as many other benefits and penalties are under the Tax Code. It was a non issue constitutionally.
Like his predecessor, Chief Justice Rehnquist, who Roberts clerked for and whose career legacy is his limiting the application of landmark criminal law cases like Gideon (right to a lawyer) Miranda (right to remain silent and consult a lawyer and no coerced confessions) and Mapp (search and seizure rights), Roberts apparently has taken a first step in limiting the application of the Commerce Clause to business activity to the detriment of the public and strengthening the old argument about States’ rights under the Tenth Amendment which in the last century took second place to the Commerce Clause in invoking Federal power over a broad range of issues involving uniform enforcement of law over all the states . So Roberts is likely to become the Rehnquist of the Commerce Clause.