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Roberts’ decision highlights role of the court

Whatever practical effects may flow from last week’s decision on the Patient Protection and Affordable Care Act, many observers say Chief Justice John G. Roberts Jr. has sent a strong message about the role of the judiciary in federal government.

“He quite deftly rescued the Supreme Court from its criticism of [engaging in] judicial activism,” said Leslie Meltzer Henry, a professor at the University of Maryland Francis King Carey School of Law who has been critical of other recent opinions written by the chief justice. “This is really a transformative decision.”

By casting the fifth vote to uphold the law, Roberts was essentially saying that “what takes priority over everything is our duty to uphold the statute if we can find some way to do it,” said Arthur D. Hellman, a professor of constitutional law at the University of Pittsburgh School of Law. “What carries the day is we should, if at all possible, uphold the decision of the people’s representatives.”

Professor Michael I. Meyerson, of the University of Baltimore School of Law, said Roberts’ deference to Congress may have resulted from a regard for the court’s independence after its 2000 ruling in Bush v. Gore and its Citizens United v. Federal Election Commission decision in 2010. The decisions, which essentially awarded George W. Bush the presidency and struck down limits on corporate campaign contributions, have been widely criticized as politically motivated.

“He wants his legacy to be that he preserved the honor and reputation of the court,” said Meyerson, who teaches constitutional law. “I think that might have motivated him, and I think that’s a good motivation.”

Roberts relied on the Constitution’s text to find the Affordable Care Act, or ACA, a valid exercise of Congress’ taxing authority.

Under the ACA, individuals who do not maintain health insurance must make an additional payment to the Internal Revenue Service. The payment, though labeled a “penalty” in the statute, “may reasonably be characterized as a tax,” Roberts wrote in his 5-4 majority opinion. “Because the Constitution permits such a tax, it is not our role to forbid it or to pass upon its wisdom or fairness.”

The penalty-as-a-tax argument was the third and final one the Obama administration gave to the court, and, according to Hellman, it was considered the “long shot.” The other two arguments, which the court rejected, were that the law was a valid exercise of Congress’ authority to regulate interstate commerce and to take all necessary and proper steps to do so.

“Chief Justice Roberts gave a narrowing interpretation of the Commerce Clause but a broader sway to the meaning of the taxing power,” said State Sen. Jamin B. “Jamie” Raskin, a Montgomery County Democrat who teaches constitutional law at American University’s Washington College of Law. “Congress cannot generate commerce in order to regulate it. Congress has to be careful not to compel people to participate in a commercial endeavor, broadly construed, unless it does so by a bank shot through the taxing power.”

Joining the chief justice’s opinion on that point were justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, who are regarded to be the court’s liberal wing.

They parted ways, however, on the question of whether the ACA was a valid exercise of Congress’ power to regulate interstate commerce. The four other justices joined Roberts in finding the Commerce Clause does not give Congress the right to coerce people to engage in commerce through a compelled purchase.

“Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today,” Roberts wrote. “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions.”

Ginsburg led the dissenters in likening the ACA to the Social Security Act, which the Supreme Court has upheld as a valid exercise of Congress’ Commerce Clause authority.

“The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930s,” Ginsburg wrote. “In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care.”

Henry, who teaches health care law, criticized Roberts’ “cognitive dissonance” in concluding the ACA is not a valid exercise of Congress’ authority to regulate interstate commerce after concluding the individual mandate is a “shared responsibility” of all U.S. citizens that can be taxed.

She called health care a national concern, as many states fail to adequately ensure coverage for all of their residents.

“The Supreme Court really ought to engage in Commerce Clause analysis in instances in which states cannot solve problems on their own,” she said. “I think he gives short shrift to the Commerce Clause argument.”

Raskin noted that the 1964 Civil Right Act, which the high court has upheld on Commerce Clause grounds, coerced many hotel owners into providing lodging to African-Americans.

“Congress can coerce people to do business with people they do not want to,” Raskin said.

Rejecting the Commerce Clause argument makes Supreme Court jurisprudence murky in that area, said Mark Graber, also a professor of constitutional law at UM Carey.

The decision shows “the court is prepared in the right case to limit the Commerce Clause,” Graber said. “We just don’t know where that is.”

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. stated in a joint dissent that they would have struck down the law as unconstitutional. They noted that the law cast the payment to the IRS as a “penalty,” not a tax.

“The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so,” the four wrote.