Home / General / The Supreme Court’s Greatest Misses, #1A: The Impropriety of John Roberts

The Supreme Court’s Greatest Misses, #1A: The Impropriety of John Roberts


Given the discussion in the most recent Supreme Court thread, I thought it could be fun to do a series about the worst Supreme Court decisions ever, based on some combination of bad reasoning, immoral constitutional theory, and/or bad consequences. You can let me know if you’d like this.

Anyway, this ended up not mattering, but while we’re on the subject of Sebelius and since it ranks very poorly on point #1 let’s talk about Roberts’s Necessary and Proper Clause “analysis“:

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, criminalizing bribes involving organizations receiving federal funds,  and tolling state statutes of limitations while cases are pending in federal court. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.

This is in no way an authority that is “narrow in scope,” or “incidental” to the exercise of the commerce power. Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

This is basically just gibberish, inventing a “proper” requirement not found in McCulloch that also makes no sense on its own terms. And the reason it’s gibberish is that the argument is transparently wrong. This is the summary of Roberts’s argument:

  • Apart from the mandate, the other regulations in the ACA — guaranteed issue, community rating, etc. — are valid exercises of the commerce power. (Both of the opinions Roberts apparently wrote in Sebelius concede this.)
  • The mandate is, as Roberts concedes, constitutionally “necessary” to the valid regulations of interstate commerce; indeed, according to the opinion Roberts wrote but ended up not signing, so necessary that if it was found unconstitutional the whole statute had to be struck down.
  • But the mandate is not “necessary and proper” to a regulation of interstate commerce, because something something “proper.”

But this is nonsensical. As RBG says in her opinion, the slippery slope argument that allegedly makes the “necessary” regulation not “proper” is just wrong; the free rider problem created by the legal requirement to provide emergency care in health care markets is highly unusual. There is nothing “extraordinary” about the claimed power; it’s exactly the kind of power the necessary and proper clause was designed to facilitate.

RBG is also devastating on this point. I mentioned this at the time, but the shiving of Scalia is particularly glorious:

The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r]that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich,545 U. S., at 24–25 (A challenged statutory provisionfits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,”such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part ofa more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.” (citation omitted)).

Recall that one of Congress’ goals in enacting the Affordable Care Act was to eliminate the insurance industry’s practice of charging higher prices or denying coverage to individuals with preexisting medical conditions. . The commerce power allows Congress to ban this practice, a point no one disputes.

Congress knew, however, that simply barring insurance companies from relying on an applicant’s medical history would not work in practice. Without the individual mandate, Congress learned, guaranteed-issue and community-rating requirements would trigger an adverse-selection death-spiral in the health-insurance market: Insurance premiums would skyrocket, the number of uninsured would increase, and insurance companies would exit the market. See supra, at 10–11. When complemented by an insurance mandate, on the other hand, guaranteed issue and community rating would work as intended, increasing access to insurance and reducing uncompensated care. See supra, at 11–12. The minimum coverage provision is thus an “essential par[t] of a larger regulation of economic activity”; without the provision, “the regulatory scheme [w]ould be undercut.” Raich, 545 U. S., at 24–25 (internal quotation marks omitted). Put differently, the minimum coverage provision, together with the guaranteed-issue and community-rating requirements, is “ ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power”: the elimination of pricing and sales practices that take an applicant’s medical history into account. See id., at 37 (Scalia, J., concurring in judgment).

It ended up not mattering, but every argument conservatives ginned up against the ACA was just ridiculous result-oriented hackery.

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