Subtle conservative victories lurk within the health care ruling

Protesters against the health care overhaul gathered outside the Supreme Court on Thursday.

Without question, the big story out of Thursday’s Supreme Court ruling was the survival of the Affordable Care Act, almost in its entirety. But University of Minnesota Law Professor Dale Carpenter said that in subtle ways, the five conservative justices laid the groundwork for the continuation of the court’s conservative drift of recent years.

“Conservative constitutionalists won on two very important issues,” Carpenter said, indicating to him that “the federalism revolution is not over.” Specifically:

1. All five of the conservatives agreed that Congress’ power to regulate interstate commerce is not broad enough to justify the individual mandate requiring Americans to buy health insurance. Yes, true, Chief Justice John Roberts decided that the mandate could be preserved in effect by viewing it through Congress’ taxing power. That saved the heart of President Obama’s signature legislative accomplishment. But considering how much of the expansion of federal power since the New Deal has been justified constitutionally via the Commerce Clause, the fact that a five-member majority of the court said the Commerce Clause couldn’t be stretched to require individuals to engage in a form of commerce against their wishes – that is to buy health insurance when they preferred not to – signals to Carpenter that “this court really is going to be watching what Congress does” and is not inclined to buy unlimited expansions of congressional power under the Commerce Clause.

2. Secondly, not just the conservatives but seven of the nine justices struck down the portion of the health care law that could have taken all federal Medicaid funding away from states that declined to participate in the expansion of Medicaid envisioned by the so-called Obamacare law. This was the only major defeat for the administration in the ruling yesterday, and it remains to be seen whether Republican-dominated states will actually opt out of the Medicaid expansion as a symbol of their resistance to federal overreaching. But Carpenter said this was the first time since the New Deal that the court had struck down an effort to use the leverage of withholding federal largesse to dragoon states into going along with pressure from Washington.

That word “dragoon” is actually from the ruling.  

Medicaid is a state-federal cost-sharing program to provide health care to the poor. States don’t have to participate if they don’t want to pay their share of the cost. But they all do and some states get up to 10 percent of their total budget in the form of federal payments for Medicaid. One of the biggest underemphasized aspects of the Affordable Care Act is the expansion of Medicaid so that it covers families with higher incomes than in the past. The feds are offering to pay the majority of the cost but states would have to pay a minority share that would gradually rise to 10 percent of the cost of the expansion.

State participation is voluntary. But to make sure states agree to pay their share of the Medicaid expansion, the law gave the federal government the power to withhold all federal Medicaid subsidies – not just the portion associated with the expansion but all of the Medicaid money that a state has been receiving for years – from any state that declined to participate in the Medicaid expansion.

The threatened loss of so much federal money “is economic dragooning that leaves the states with no real option but to acquiesce in the Medicaid expansion,’’ Roberts wrote. “A state could hardly anticipate that Congress’s reservation of the right to ‘alter’ or ‘amend’ the Medicaid program included the power to transform it so dramatically… Congress [cannot] penalize states that choose not to participate in that new program by taking away their existing Medicaid funding.’’

“Much of what Congress does nowadays is done in the form of conditional spending,” Carpenter said. Previous Supreme Court rulings have suggested that there must be some limit to federal power to coerce states through the threat of withholding funds, “but this is the first time the court has identified an unconstitutional overreach in this kind of pressure,” Carpenter said. “I would expect challenges to conditional spending to increase.”

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Comments (8)

  1. Submitted by James Hamilton on 06/29/2012 - 10:05 am.

    If one reads the decision

    you’ll see that the “conservative victories” are far from subtle. Roberts’ discussion of the Commerce Clause has virtually nothing to do with the language of the Constitution and everything to do with political philosophy. In the long term, this will be the most important aspect of the decision because the ACA, unlike the ruling, can be amended by Congress.

    At the same time, he manages to find that the penalty for failure to insure is not a tax for jurisdictional purposes (allowing the court to reach the merits) but is a tax for constitutional purposes (allowing the majority to uphold the individual mandate), providing further reason for the person in the street to question his (and the court’s) long since abandoned objectivity.

  2. Submitted by Hiram Foster on 06/29/2012 - 10:38 am.

    Conservative victories

    I suggest that to the extent that liberals subscribe to positions also held by conservatives on the court, that such positions might not actually be conservative.

  3. Submitted by Hiram Foster on 06/29/2012 - 11:08 am.

    The reading

    Yes, I have little interest in the actual legal rationales for any of these decisions, for what I feel is the the very good reason that the court itself doesn’t care about such rationales. This Court just isn’t available for reasoning with, at least not on issues with political implications. With respect to Justice Roberts, I think it was the political, not the legal issues which were compelling. Striking down a major policy initiative of an elected administration would have permanently destroyed the credibility of the Supreme Court already undermined by a series of politically one-sided decisions. For the moment at least, he saw political wisdom in taking just one step back from the precipice.

    If change comes, it won’t be because of the merits of any arguments that will be made. Change will come from justices leaving and new justices being added to the court.

  4. Submitted by Ray Schoch on 06/29/2012 - 11:47 am.


    Apparently, the only “real” conservative ideas are the ones with which Mr. Foster agrees.

    I feel better already. Since I’m inclined to go along with both of the arguments laid out by the SCOTUS conservatives that Eric mentions in the article, I was afraid for a minute that I might be drifting into the right wing. Fortunately, since Mr. Foster is the one who decides whether or not an argument is genuinely conservative, and these arguments apparently don’t pass conservative muster, ’twould seem I’ll be able to maintain my socialist/collectivist credentials for a while longer.

    • Submitted by Rachel Kahler on 06/29/2012 - 02:09 pm.

      “Real” conservatism

      I don’t think that Mr. Foster is entirely wrong. Just because we hold liberal political beliefs doesn’t mean that those views are constitutionally liberal. Rather, it seems that more and more often, it’s not a constitutional disagreement that we necessarily face with our “conservative” rivals, but a purely political one.

      For example, while it is abhorrent that people may falsely claim to have received a military honor, I agree with the Supreme Court’s decision to strike down the Stolen Valor Act. Those crying foul over that are naive to the implications of ruling otherwise. It was a very conservative decision, and it flew in the face of both political liberals and political conservatives (for different reasons, mind you), but I think if we boiled it down to the freedom of speech, we would have to come to the same conservative conclusion. At least one would hope.

      Further, I think (at least recently), many thinking political liberals actually hold even more conservative constitutional views. After all, the “conservatives” on the SCOTUS decided on Citizens United.

  5. Submitted by Jon Kingstad on 06/29/2012 - 02:55 pm.

    “Expecting challenges to conditional spending to increase”

    I’d say that’s the right wing message in this decision. Roberts got two “liberal” justices to go along with him on that, so what we’ll see is increased interference by the judiciary in legislative policy matters depending on whether the justices (or appeals court or district court judges) feel the conditions “dragoon” a state too much. I don’t think liberals or conservatives should be too happy about a court that feels free to interject itself into policymaking to such a degree. If the ACA is unconstitutional insofar as its conditioning of already conditional funds “unduly interferes” with the State’s rights, what’s to stop a State from opting out of Medicaid (or other such program) altogether? The whole federalism business is simply a fig leaf which the court invented in the first place to validate necessary legislation that the limited and cramped interpretations of the Constitution would not allow. I suppose this is the way this court figures it can respond to right wing complaints about government getting “too big”. This would never mean anything like enforcing the Bill of Rights and the Fourteenth Amendment to protect the people from “big brother government”- the police state, whether it be federal, state or local.

  6. Submitted by Charlie Quimby on 06/29/2012 - 07:25 pm.

    States Rights

    States should be allowed to go to hell on their great white steed without interference from a federal government that is trying to get them to help all their citizens.

  7. Submitted by Eric Paul Jacobsen on 07/01/2012 - 08:28 am.

    The Right of the States – to Depend on the Federal Government

    ‘The threatened loss of so much federal money “is economic dragooning that leaves the states with no real option but to acquiesce in the Medicaid expansion,’’ Roberts wrote. “A state could hardly anticipate that Congress’s reservation of the right to ‘alter’ or ‘amend’ the Medicaid program included the power to transform it so dramatically… Congress [cannot] penalize states that choose not to participate in that new program by taking away their existing Medicaid funding.’’’

    This is an interesting departure, rhetorically at least, from the conservative belief that the federal government chiefly does harm by spending too much money. This opinion suggests that the federal government can also do harm by withholding money. Not content to damn the federal government for what it does, a Roberts conservative wants to be able to damn it for what it doesn’t do. What we have here is the groundwork for every state government’s right to as much “interference” from the federal government as it wants.

    The ultimate target seems to be either the federal government’s power to disburse funds with discretion, or state governments’ right to impunity for their own failures to take care of their own populations.

    I sympathize with Charlie Quimby’s view, but my socialist conscience doesn’t like to see so many poor red-staters suffer for the ideological cruelty and stupidity of their own representatives on the state level. I think a good short-term solution might be for the federal government to require every federally-funded program to be clearly identified as such. This would slowly make clear to the voters in red states how much their state governments depend on the federal government – even as their state representatives condemn dependency generally as evil.

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