Live by the Technicality, Die by the Technicality: Orin Kerr on the ACA Decision

Orin Kerr:

The Volokh Conspiracy » The Conservative John Roberts: it’s important to remember that the entire challenge to the Affordable Care Act was premised on a technicality. Everyone challenging the Affordable Care Act agreed that Congress could enact a single-payer system. Everyone challenging the Affordable Care Act agreed that Congress could enact the same law as it did if it only chose the formal label of a tax.

So the nature of the challenge to the mandate was a bit of a gotcha argument: The major legislative achievement of the Obama Administration should be struck down because of the technical way it was done, even though Congress could have passed the same legislation with a few changes if only the Court had announced [that it wanted] those changes beforehand rather than after.

In part, that was the strategy behind the challenge: Make the challenge so narrow that the challenge really just applied to this one law. The thinking was that this would make it more likely that the Court would strike down the Act. But that also meant that the Court had an easy way to uphold the law, as they could just read the technicalities accordingly.

The result is an opinion that happens to please today’s liberals and annoy today’s conservatives, because the liberal law that was passed and that conservatives hate remains on the books. But the key opinion that leads to that result is not a liberal opinion; rather, it strikes me as a largely conservative opinion that just happens to get to a liberal result.

I will note that it was not a law that conservatives hated until Obama acceded to their demands and dropped the public option from the bill in late 2009. Then and only then did the individual mandate shift from being a proper conservative responsibility principle to being the spawn of Satan.

And I will note that the regulation of "inactivity" was the key to George W. Bush's Social Security privatization effort of 2005: if you were "inactive" and did not establish your own private account, the IRS would force you to pay a "penalty" or make a "contribution". The idea was to force you to engage in commerce via establishing a retirement account with a financial intermediary just as the idea of the ACA was to force you to engage in commerce by purchasing health insurance.

If you agree with me that there ought to be some limits--that the federal government has no business depriving medical marijuana patients of their painkillers on the grounds that their possession of small amounts of home-grown marijuana substantially effects interstate commerce a la Scalia's opinion in Gonzalez v. Raich, and if you agree with me that the federal government ought not to be using the funding for Eisenhower's interstate highway system as a club to force states to take the unconnected-to-highways step of setting their drinking ages at 21--creating out of whole cloth fuzzy legal principles about the illegitimacy of the regulation of "inactivity" and transforming federal grants-in-aid to states into some form of legal entitlement to money is not the way to go about it.

We are moving into a world in which a federal statute is unconstitutional because it overreaches the commerce clause when five justices dislike its substance, and in which an expansion of a federal-state program is illegitimate coercion of the states when five justices dislike its substance. But is this a surprise? We already were in a world in which five justices chose a president on the grounds that presidents of his party had appointed them to the bench.