Turning ObamaCare's Lemons into Federalist Lemonade

Keep your heads up.  Defenders of the health care law are going to continue to spike the football as if the Supreme Court vindicated their ideas and repudiated conservative ones.  But that is not what happened.  In the long run, conservatives may have won more than they lost.  The court strengthened federalism by limiting the federal government's ability to coerce the states and establishing principled limits to the scope of the Commerce Clause.  These legal victories will remain in place long after the political branches repeal ObamaCare. 

That many liberals are celebrating the outcome of today's case, despite the court's rejection of their main legal arguments, indicates that they are concerned more with achieving their goals than with the law.  They may live to regret this myopia.

This defeat offers conservatives an opportunity to highlight that they are different.  It offers them an opportunity to show that they care about the law and the Constitution regardless of the outcome of any particular case.  It is of the utmost importance that conservatives do not allow their disappointment at losing the battle to keep them from recognizing their very real and very significant victories.  Moping about losing this battle is a waste of time and energy that they cannot afford. 

The most hotly debated issue following the passage of ObamaCare was whether the Constitution's Commerce Clause allowed the federal government to coerce citizens into purchasing an item against their will.  Conservatives rightly pointed out that if the Commerce Clause allowed the federal government to force a citizen to buy health insurance, it would give the government unconstrained authority.  The biggest question seemed to be whether or not the Constitution imposed any limiting principle on the powers of the federal government.  The Supreme Court's answer to this question was a resounding yes.

Five justices flatly rejected the administration's theory that the Commerce Clause empowered it to force citizens to purchase health care.  Since a majority of the justices joined opinions espousing this principle, the lower courts will consider themselves bound to follow it.  The court refused to accept the theory that the Commerce Clause allowed the government to regulate "inactivity" in the same way that it could regulate behavior.  This is a vindication of a central conservative argument.  The court went so far as to cite the now-famous analogy that if the Commerce Clause authorizes the federal government to force people to purchase health care, it would also empower them to force people to buy vegetables.  Justice Roberts' opinion adopted the conservatives' most important legal argument nearly verbatim.

If the Court had adopted the liberal argument, it would have opened the door for any number of mandates in the future.  It would have established an unprecedented grant of authority to the federal government that would have virtually ensured that liberals could adopt their entire wish list of social and economic programs under the guise of regulating commerce.  Justice Roberts' opinion, along with the four dissenters, slammed the door on that scenario.  If liberals want to use this opinion to adopt the items on their agenda, they are going to have to describe them as politically unpopular tax hikes.  Congress might now technically have the power to tax anyone who does not buy enough broccoli, but the political consequences of passing such a tax are likely to dissuade them from ever doing so.  This is a victory for the rule of law and will make it more difficult for the liberals to stealthily impose their agenda.

In a second victory for conservatives, the Court refused to allow the administration to use the denial of Medicaid funds as a doomsday weapon against the states.  The health care law contained a provision that threatened to strip a state's Medicaid funds if it did not comply with sections of the bill that expanded Medicaid.  Nearly every state depends on those funds and would face massive deficits and bankruptcy if administration withdrew them.  If the federal government could threaten to bankrupt any state that did not adopt its policies, federalism would become a mere illusion.  Seven justices agreed that the constitution does not permit this type of blackmail.  The Court interpreted the provision so that it applied only to new Medicaid funds created under the health care law, and not pre-existing funds upon which the states already depend.

The federal government's ability to coerce states by placing conditions on funding has been a matter of controversy for decades.  Some legal scholars indicate that this section of the ruling might have the greatest practical impact, and it was a decisive win for conservatives.

Sinking into despair is the worst thing that conservatives can do in response to the Supreme Court upholding the Affordable Care Act.  Instead, conservatives should look to build on their victories.  Justice Roberts' strong articulation of limits to the Commerce Clause indicates that conservatives should bring legal challenges to pare back some of the more egregious overreaches in that area.  The fact that seven justices rejected the provision regarding the withdrawal of Medicaid funds indicates that the court might be ready to narrow other statutes with similar provisions, including some environmental regulations. This decision upheld a terrible law, but conservatives might be able to turn lemons into lemonade.

Howard Slugh is an attorney practicing in Washington. His writings can be read here.