by Jane Anne Morris

In the “Obamacare” decision, Chief Justice Roberts masterfully executed what the Zulu call “buffalo horns” — the pincer strategy¹. Purchase of health insurance is mandatory (a 5-4 vote), BUT states are not required to expand Medicaid to cover the people who can’t afford insurance (a 7-2 vote). The combination is a perfect way to anger many (excepting most health care and insurance corporations), without helping those most in need, while appearing to set aside partisanship.

Also pretty smooth was Roberts’s rounding up of five votes (his own plus the four “conservatives”) to affirm that the commerce clause cannot be the “hook” for this broad social welfare legislation–the first time since the New Deal that the Supreme Court put its foot down in this manner. Additionally, this is the Court’s fourth case since 1995 signaling the waning of power of the commerce clause to support a range of environmental, labor, and civil rights law. Need a quick example? Clean Water Act. ²

It’s as though, when Roberts surmised that the state Medicaid expansion requirement was going down, he went clause-shopping. After a sermon fulminating against overuse of the commerce clause, Roberts tapped the Constitution’s “tax and spend” clause (Art. I. Sec. 8. Cl. 1) to justify the individual mandate (the four “liberals” joining him stuck with commerce). In so doing, Roberts publicly pasted a ready-made “tax and spend” label on an incumbent president in a sagging economy.

What could have been at the outset (ca. 2009) a national discussion of single payer universal health care, has been diverted into a discussion of the legalistic definitions of tax, activity/ inactivity, commerce, regulate, effects, and so on. This case stands as a reminder that the Supreme Court wields a “line-item veto” so comprehensive that it can rewrite the entire complexion of legislation by selectively deleting and affirming. Just think what the Court could do to a single payer law.

I have to agree with the final sentence in James MacGregor Burns’s 2009 book Packing the Court:

“A national reappraisal of the all-powerful court chosen by judicial roulette is crucial if American democracy is to meet the rising challenges of the twenty-first century.”³

1. Not Sure What Happened?

   On June 28, 2012, the Supreme Court delivered its decision in National Federation of Independent Business v. Sebelius.

   The vote was as follows:

   • 5-4 saying the individual mandate was constitutional (4 liberals accepted it under commerce, plus Roberts accepted it under tax & spend authority, Art. I., Sec. 8, Cl. 1).
   • 5-4 saying the individual mandate was not constitutional under the commerce clause (Roberts plus 4 conservatives).
   • 7-2 said the Medicaid expansion requirement was not constitutional (the 2 dissenters were Sotomayor & Ginsburg).

   (For JAM’s background analysis of the issues, see: “ObamaCare”, The Constitution, and Democracy: The Heart of the Matter)

2. See Morris, Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (2008).
3. James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (NY: Penguin Press, 2009).