Chief Justice Robert's Vote Saves Health Care Law

Jun 29, 2012
Originally published on June 29, 2012 4:44 am

Transcript

LINDA WERTHEIMER, HOST:

This is MORNING EDITION from NPR News. I'm Linda Wertheimer.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne. The Supreme Court's decision to uphold President Obama's health care law defied many predictions: the outcome, the legal grounds, and the makeup of the court majority. For Chief Justice John Roberts, his definitive court opinion was either a triumph of judicial restraint, or a sellout, depending on who you talk to.

NPR legal affairs correspondent Nina Totenberg has more on Roberts' vote, which leaves in place the president's signature achievement, putting it at center stage for this fall's presidential election.

NINA TOTENBERG, BYLINE: It was not Justice Anthony Kennedy, the usual swing justice, who cast the critical fifth and decisive vote. Kennedy and three of the court's other conservative justices would have struck down the law in its entirety. Instead, it was Chief Justice John Roberts, a tried and true conservative appointed by President George W. Bush, who saved the Obama health care overhaul and the individual mandate requiring most Americans to have health insurance or pay a penalty.

The salvation, however, was not based on the main legal theory advanced by the Obama administration or other supporters of the law. They had argued that the commerce clause of the constitution, which allows the national government to regulate the economy, permitted Congress to enact the individual mandate in order to provide nearly universal health insurance.

The five court conservatives, including Roberts, rejected that theory. But at this point, amazingly, the coalition shifted to uphold the law. Turning to the government's alternative argument, Roberts said that Congress could enact the mandate using its taxing power, and on this he was backed by the court's four liberals.

True, he acknowledged, congress labeled the fee a penalty, not a tax. But he pointed out that the penalty is paid to the IRS and based on individual income. In short, he said, it functioned like a tax and like many taxes was meant to encourage certain actions - in this case to get health insurance.

Finally, in one more unexpected move, the court, by a seven-to-two vote, ruled that the Medicaid expansion in the law violated the Constitution by attaching conditions that were too coercive on the states in order to force them to sign up for the program.

The coercive condition was that the states would lose all their Medicaid money if they refused to adopt the expansion. It was the first time the court has ever said a spending condition is coercive on the states. Notwithstanding that, however, most experts said that part of the ruling would have little practical effect.

Since the court majority left the Medicaid expansion intact for any state that wants to participate, it's doubtful few if any states would refuse since the federal government is picking up the whole tab for now, and it's hard to see states would be willing to have their citizens' tax money go to pay for a program in other states but not their own.

Roberts in particular won considerable praise for his role in the decision. Stanford law professor Michael McConnell, a critic of the health care law, nonetheless called the decision masterful.

MICHAEL MCCONNELL: I do think that it shows that John Roberts is really the person controlling this court. It is not so much an Anthony Kennedy court anymore is it is a John Roberts court, and that his particular brand of jurisprudence is one which tries to avoid constitutional clashes between the court and the other branches without sacrificing constitutional principle.

TOTENBERG: Harvard law professor Noah Feldman said Roberts proved with this decision that he loves the court more than his own political ideology.

NOAH FELDMAN: By exercising restraint what Roberts did is that he saved the Roberts court from being known as the most conservative activist court in close to a century. So that's a huge save on his part.

TOTENBERG: But hardline conservatives like Chapman law professor John Eastman disagreed.

JOHN EASTMAN: This was a sellout of monumental proportions for those that recognize that there are limits on the federal power of the Constitution.

TOTENBERG: And Michael Carvin, who challenged the law on behalf of the National Federation of Independent Business, called the decision cynical.

MICHAEL CARVIN: It's cynical in the sense that both the Congress and the president sold the American public on the notion that this was not a tax, cynically did a bait and switch after they had gotten the law enacted, and now unfortunately the court has sanctioned this, you know, fraud on the American public.

TOTENBERG: Still others took a wait and see attitude. Jeff Shesol has written extensively about the court and the presidency.

JEFF SHESOL: I think the lionization of Chief Justice Roberts is a little bit premature. He's got a lot of judging left ahead of him.

TOTENBERG: Indeed, next term the court is expected to rule on the constitutionality of the Voting Rights Act, affirmative action in higher education, and potentially more than one issue related to gay marriage. But for now, liberals could savor a rare but close win from a conservative court and a conservative chief justice. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.