Yet More About the Supreme Court’s PPACA (Obamacare) Opinion (Part 3)

Last time, we talked about whether the federal Anti-Injuction Act barred challenges to the PPACA. All nine justices were united in the view that it did not, which leads us to the question whether the “shared responsibility payment” (“SRP”) provision of the PPACA was within the power of Congress to enact. Here we do not find unanimity.

Justice Roberts, in the lead opinion, concludes that Congress had no power to enact the SRP under the Commerce Clause of the Constitution. In this conclusion he is joined by Justices Scalia, Kennedy, Thomas and Alito, whose reasoning closely follows that of Justice Roberts.

This issue was expected to be the heart of the case by readers of the briefs and observers of the oral argument. The Commerce Clause (along with the Necessary and Proper Clause) was the Government’s primary justification for the validity of the SRP and the primary point of attack for the challengers.

The Commerce Clause is in Article I Section 8 of the Constitution and reads as follows: “The Congress shall have the power to . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes. . . .” At least part of the intent behind this provision was to prevent the various states from erecting tariffs against one another (some states had done this following the Revolutionary War). But talking about the “intent” is already, as noted in an earlier entry, to begin to take sides in a controversy about how the Constitution should be applied.

Justice Roberts acknowledges that “it is now well established the Congress has broad authority under the [Commerce] Clause.” He cites the 1942 case of Wickard v. Filburn, which considered a federal quota on the amount of wheat grown per acre (the intent was to increase the price of wheat for the farmers’ benefit). Filburn argued that Congress had no power to regulate his wheat production because he used all of his wheat himself (e.g. for feeding his chickens) and did not sell it in interstate commerce. The Supreme Court upheld the law, arguing that Filburn’s violation of the quota made him less likely to purchase wheat from others. This activity, if aggregated among many wheat consumers, could have a significant effect on the price of wheat in interstate commerce and therefore triggered Congress’s power.

Justice Roberts evidently thinks that Wickard represents an extreme limit on Congressional power. As he says, even if Congress can regulate many kinds of commercial activity on the theory that affects – perhaps indirectly – interstate commerce, “Congress has never attempted to rely on [the Commerce Clause] power to compel individuals not engaged in commerce to purchase an unwanted product.” The dissent agrees, saying that Wickard has been regarded as the “ne plus ultra of expansive Commerce Clause jurisprudence.” (“Ne plus ultra” is what Gandalf says to the balrog in the Latin version of the Lord of the Rings.)

Justice Roberts and the dissent draw two conclusions here. First, no prior case construing the Commerce Clause has ever permitted Congress to require citizens to purchase a commercial product. Second, if Congress can require the purchase of a commercial product, then there is no principled limit on Congress’s power, contrary to the intent of the framers of the Constitution that the federal government was one of only limited powers. As the dissent notes, the Government was invited, at oral argument, to say what federal control over private conduct could not be justified on the same basis as the PPACA mandate. “It was unable to name any.”

The concurring opinion by Justices Ginsburg, Breyer, Sotomayor and Kagan makes an effort to answer the question “if Congress under the Commerce Clause can require citizens to purchase insurance policies, are there any principled limits on its power?” This has sometimes been expressed in a more colorful way: “Can Congress require everyone to purchase broccoli?” That question will be considered in the next entry.

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