The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution. ...
-- Joseph Story (1833) (1)
That the Court was sharply divided was not a surprise. The contrasting briefs--including a record 136 from amici--laid out the dispute. (2) Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. (3) So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, (4) and another would entirely uphold the same law; (5) the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world.
The unexpected further, controlling opinion authored by Chief Justice Roberts was historic not only in its bottom line (upholding most of the law but under the federal taxing power, after finding no power under the Commerce Clause), but also in its staking out a third position, outside the two warring camps. (6) Leaving to others speculative debate about the motivations and intentions of Chief Justice Roberts, (7) this Comment argues that this third opinion transcended the polarized political debates surrounding the legal challenge to President Barack Obama's signature domestic policy initiative through analytical convergence, not political compromise. Although pundits called it a compromise, something else was at work. (8) Here, Chief Justice Roberts followed Justice Joseph Story's view of "reasonable interpretation." (9) Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage. The reasons and interpretations exchanged in this case--not just the votes and the result--amplify the Supreme Court as a symbol of the rule of law. And, because it was a legal ruling, there will be repercussions for legal doctrines and for the actual scope of governmental powers for years to come. (10) Or so I will argue here.
In the political debates over national health care, which have recurred periodically in the United States over the past 100 years, (11) advocates have disagreed over whether markets or governments offer better solutions and whether or how public incentives or subsidies should be designed. (12) While other countries installed varied versions of compulsory insurance, tax-funded health care, or single-payer programs, (13) the United States refrained from a federal policy for all, even as the federal government provided specific programs for individuals living in poverty, elderly people, and federal employees and offered incentives for provision by private employers. Observers knowledgeable about other nations wonder what explains this pattern of American exceptionalism. (14) Some United States presidents vowed to end it. (15)
The recent political fight, ultimately producing a bill, passed largely along party lines and logging in at over 900 pages, (16) generated considerable media attention--devoted much more to political maneuvers and controversy than to the substance of the legislation. (17) In the view of commentators, the political fight continued in the lawsuits--filed by twenty-six states as well as private parties--and judicial decisions leading up to the Supreme Court's consideration. (18) As intriguing as it seems to treat the Court as simply another political arena where calculation of political advantage, ideology, and power plays rule, (19) a deeper understanding recognizes the distinctive legal norms, practices, and significance that the Court can and does represent. The Supreme Court's National Federation of Independent Business v. Sebelius (20) (NFIB) is a case in point.
I. TWO OPINIONS, TWO LEGAL WORLDVIEWS
Reading the two opinions, reflecting the views of eight of the nine Justices on key issues, is a bit like traveling between two countries speaking different languages. The joint dissent proceeded from a clear conception of the Constitution as a document limiting the powers of the federal government and authorizing the Court to identify less restrictive means to regulate conduct that cast doubt on congressional measures. (21) Justice Ginsburg's opinion--joined entirely by Justice Sotomayor and in large part by Justices Breyer and Kagan--expressed a consistent conception of Congress as charged with governing effectively and entitled to respect in its choice of tools to address the extraordinary and immense national market for health care products and services. (22) Conceding that Congress has the power to remedy the problem of access to health care for Americans who cannot afford it, the joint dissent asserted judicial authority actively to scrutinize the means selected by Congress. (23) The joint dissent stated that the Court must engage in "careful scrutiny" of assertions of power by Congress under the Commerce Clause; (24) Justice Ginsburg treated congressional action under the Commerce Clause power as deserving of respect, presumptively constitutional absent a "plain showing" of irrationality. (25) Justice Ginsburg's opinion acknowledged that Congress could have pursued other means but found the one chosen to be practical, reasonable, and respectful of the states and private enterprise. (26) The joint dissent treated the Commerce Clause as limited not only by the implicit postulates of state sovereignty, but also by the Tenth Amendment's explicit textual command that powers not specifically and expressly enumerated are left to the states and the people; (27) Justice Ginsburg interpreted the Commerce Clause as well understood by the Framers to require flexibility, practical considerations, and actual experience, enabling Congress to act. (28)
These differences in view do not reflect reliance on different sources; both opinions used the same texts and decisions. Although it may seem that the joint dissent operated in the world as it existed before the Supreme Court reversed its own prior decisions and upheld New Deal legislation, the joint dissent expressly acknowledged the enlarged scope of the federal power under the Commerce Clause since 1936 (29) and the power of Congress to prescribe even the price of a commodity affecting interstate commerce. (30) And Justice Ginsburg's opinion relied as much on constitutional text and views of the Framers as on post-New Deal interpretations. (31)
Largely, but not entirely, the two opinions differed in method. The joint dissent preferred formalist or strict interpretation of words, turning not only to contemporaneous dictionary definitions, (32) but also to the location of a provision under a statutory heading. (33) Abstracting words from context and reflecting a predilection for either/or thinking, the joint dissent rejected the theory that the Patient Protection and Affordable Care Act is authorized by the taxing power of the Constitution because Congress did not use the term "tax" in crafting the law. (34) The joint dissent here even criticized language of a heading in the Government's brief for describing the individual mandate as "independently authorized" by Congress's power to tax. Since, in the Justices' view, the provision could not be both a penalty and a tax, the brief should have argued that it was "[a]lternatively ... not a mandate-with-penalty but a tax." (35) For the joint dissent, the mandate could be only one thing, read one way. Because the Act links the required individual payment to wrongdoing--failure to purchase insurance--it is a penalty, not a tax. (36) And because enactment of a tax is unpopular, it should be Congress that so bears the heat for enacting a tax, not a Court that later renames what Congress enacted using other words. (37)
Justice Ginsburg's opinion, in contrast, proceeded historically--attentive to the Court's own deference to congressional policymaking under the Commerce Clause since 1937 and to the longstanding existence of interstate health insurance and health care markets--and contextually, alert to the continuities between the Affordable Care Act and the prior terms of the Medicaid law, including the law's reservation of the right to alter and amend any provision. This opinion considered the specific context of health care as an urgent need experienced by individuals and as a set of problems beyond the power of any single state--and therefore as falling within the Commerce Clause power and congressional discretion to choose a policy both within that power and as authorized by the Necessary and Proper Clause in the exercise of that power. (38) Justice Ginsburg's opinion also treated the tax power as independently and fully authorizing the law (39) and the mandate as functionally a "toll" constructed by the law as a "tax penalty." (40) Although the joint dissent treated identification of the complex and practical problems surrounding health insurance and health care as irrelevant to whether Congress has the power to address them by the means it specifically chose, the opinion of Justice Ginsburg stressed that Congress has authority to cast a wide net where needed to address a specific matter within its power, given changing economic and financial realities. (41)
The joint dissent's formalism included drawing a sharp distinction between an act and a failure to act, (42) while Justice Ginsburg's opinion looked behind labels and intuitions about acts versus omissions to trace the actual consumption of health care by those individuals who are not insured as an economic decision affecting the price of health care for all. (43) Justice Ginsburg stressed how the Court itself had in the past acknowledged the relationship between current and future conduct, approving of congressional power to address eventual purchases and sales. (44) "If unwanted today, medical service secured by insurance may be desperately needed tomorrow," commented Justice Ginsburg. (45) Hence, the individual mandate simply defined terms for paying for goods that will eventually be consumed in interstate commerce. (46) The joint dissenters resisted this effort to erase the difference between today and tomorrow, (47) and the distinction between action and inaction. (48) Those distinctions are the curbs on otherwise limitless federal power. So the joint dissenters accused Justice Ginsburg of "wordplay" (49) when she described the individual who does not purchase health insurance as engaging in the economic act of "self-insurance" (50) and asserted that such wordplay threatens all guarantees of individual freedom. (51) The joint dissent saw Justice Ginsburg's Constitution as one of enumerated "federally soluble problems"--authorizing "whatever-it-takes-to-solve-a-national-problem" (52)--while to Justice Ginsburg, the joint dissent's effort to impose categories and rely on strict definitions of words defied the People's decision to replace the unworkable Articles of Confederation with the Constitution and its Commerce Clause. (53)
For the joint dissent, congressional power to mandate individuals to purchase health care insurance launched a parade of horribles, (54) as Congress next could compel people to enter "the new-car or broccoli markets," (55) and the Commerce Clause could enable government to act as a "hideous monster whose devouring jaws ... spare neither sex nor age, nor high nor low, nor sacred nor profane." (56) Implicitly acknowledging media discussions that analogized the health care mandate to being forced to buy broccoli, Justice Ginsburg rejected what she named concern for "the broccoli horrible" as depending on implausible and unacceptable inferences, as well as subject to sufficient oversight by other constitutional provisions and ordinary politics. (57) For Justice Ginsburg, these fears were unwarranted given limitations already articulated and enforced by the Court, prohibiting Congress from regulating "noneconomic conduct that has only an attenuated effect on interstate commerce and is traditionally left to state law." (58) "When contemplated in its extreme, almost any power looks dangerous," commented Justice Ginsburg. (59) The worries about a slippery slope lack any empirical basis and betray a lack of confidence in the capacity of Congress and the Courts to act rationally and sensibly in the future. (60) Her opinion noted how health care and insurance markets uniquely create problems of free-riding because by law and professional practice, health care will be provided even to the uninsured with emergency needs. (61) The joint dissent expressly acknowledged the contrast in worldviews at work and observed that these differences "make a very good argument by [Justice Ginsburg's] own lights, since they show that the failure to purchase health insurance, unlike the failure to purchase cars or broccoli, creates a national, social-welfare problem ... that the Constitution authorizes the Federal Government to solve." (62) However imperfect a restriction the act-omission distinction may create, it sets some curbs on the powers of the government and requires advocates to muster the political will to pursue other solutions. For the joint dissenters, this combination of Court-enforced restrictions on Congress and realities of politics provided better assurance for liberty--putting appropriate burdens on individuals, private enterprise, and state governments to take responsibility for tough problems.
To no small extent, this difference in treating an act versus an omission reflects a different attitude toward time. For Justice Ginsburg, the ability to forecast a future act made current inaction part of a larger pattern or dynamic that is itself subject to regulation. (63) An individual's lack of insurance now becomes consumption of health care later, driving up costs for everyone; a young and healthy person today could become in dire need of health care in twenty-four hours. (64) Costs and benefits "[v]iewed over a lifespan" even out. (65) Her opinion treated as reasonable congressional attention to a long-term perspective such as five, ten, or more years. (66) If the time frame is expanded, inaction can be recast as action; (67) a failure to take a precaution like purchasing insurance becomes a predicate for financial disaster when medical bills arrive; someone not in the market for health care today will be in the market within five years. (68) For the joint dissent, present time was all that mattered; people who do not currently want health care insurance or health care should be viewed as of today, when they are not found in the market, even though the dissenters acknowledged that they could be so found "by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance." (69) Because health care and health insurance are not purchased today by these individuals, "physician office visits, emergency room visits, hospital room and board, physical therapy, durable medical equipment, mental health care, and substance abuse detoxification" should be viewed simply as "unwanted." (70) The time slice confined to this moment defined all for the joint dissent while patterns over time mattered for Justice Ginsburg's opinion.
This attitude about time extended to the stance toward individuals; rather than seeing two static groups of young and old, Justice Ginsburg saw that "today's young and healthy will become society's old and infirm." (71) Costs and benefits of both groups paying into insurance pools will even out, (72) …