Roberts's health ruling seen as tactical

When Thursday began, the lawsuit against the healthcare law seemed like a no-win situation for the court — and Roberts in particular. 


The law’s supporters said striking down a sitting president’s signature domestic achievement would be an exercise in judicial activism, contrary to Roberts's pledge to act simply as an “umpire.” Conservatives said upholding the law’s individual mandate would expand Congress’s powers almost without limit.

Roberts, though, sought to avoid both of those consequences.

“I think it was tactically brilliant, whatever one thinks of the substance of the ruling,” said Kevin Walsh, a law professor at the University of Richmond and a former clerk to Justice Antonin Scalia.

Rather than upholding the mandate under Congress’s power to regulate commerce, Roberts and the court’s four liberal justices said the mandate was permissible under Congress’s tax powers.

Roberts himself noted that the approach avoided the consequences that conservatives — himself included — had feared.

"Upholding the individual mandate under the Taxing Clause … does not recognize any new federal power," Roberts wrote. "It determines that Congress has used an existing one."

Randy Barnett, a Georgetown University law professor who worked on the case against the mandate, said Roberts tried to "have it both ways" by relying on the tax power.

"The chief justice found a way to give a legal victory to us and a political victory to the president," Barnett said.

At several points in the majority’s opinion, Roberts made a point to describe the ruling as narrow and conservative.

Roberts said the court has a responsibility not to strike down laws it doesn’t have to, or to strike more than is necessary. So although the mandate would not be constitutional under the Commerce Clause, he wrote, the court had to consider the tax argument.

“The statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it,” he wrote. “It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that (the mandate) can be interpreted as a tax.”

Alberto Gonzales, who served as attorney general under former President George W. Bush and helped vet Roberts, said he was surprised Roberts mentioned the Commerce Clause at all.

“It seems to me he could have led with the tax argument” and ignored the Commerce Clause altogether, Gonzales said. “It’s a little contrary to what I know of Chief Justice Roberts.”

Walsh was also surprised but said the move was strategically smart.

“They were able to simultaneously recognize limits on federal power while also insulating the court from charges of partisanship,” Walsh said.

Roberts pushed back against criticism from the dissenting justices over the court’s decision on the health law’s Medicaid expansion. The dissent, filed jointly by Justices Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, accused Roberts and the liberal justices of rewriting the Medicaid expansion.

The Affordable Care Act expands Medicaid eligibility and requires states to accept the new terms if they want to continue participating in the program at all. Both the majority and dissenting opinions said the provision was “coercive.”

But rather than invalidate the entire Medicaid provision, Roberts’s majority opinion struck only the specific section tying the expansion to all federal Medicaid funding. Kennedy said from the bench that Roberts “offers states a choice where Congress wanted them to have no choice.”

Roberts, though, argued that his approach was consistent with a conservative approach to upholding and striking down federal laws. He said he had followed Congress’s “explicit textual instructions,” because the health law says its Medicaid expansion is severable from other policies.

“When we invalidate an application of a statute because that application is unconstitutional, we are not ‘rewriting’ the statute; we are merely enforcing the Constitution,” Roberts wrote.

— This post was updated at 9:17 p.m.