The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause.
There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered.
Yes, Roberts voted to uphold the individual mandate, joining the court’s liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans arecrying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.
But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under theCommerce Clause.
This is why the challenge to the ACA, and its progress through the courts, came as a surprise to Democrats and to mainstream constitutional scholars: Three years ago, there was no serious doubt that Congress had the power to impose the individual mandate.
A Bloomberg story last week nicely captured the stakes: “Obama Health Law Seen Valid, Scholars Expect Rejection”:
The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.
Only eight of them predicted the court would do so.
The scholars expected to see the court gut existing Commerce Clause precedent and overturn the individual mandate in a partisan decision: Five Republican-appointed justices voting to rewrite doctrine and reject Obamacare; four Democratic-appointed justices dissenting.