Cardozo’s Deborah Pearlstein on the Affordable Care Act’s Constitutionality, Future Impact
Following the Supreme Court’s 5-4 decision largely to uphold the Affordable Care Act, much of the commentary by leading constitutional law scholars and practitioners has focused on the longer term consequences of the decision. While celebrating the outcome in the case, many scholars have raised concerns that the Court’s opinions on the scope of Congress’ Commerce and Spending Clause powers give advocates opposing broad federal power new weapons with which to attack future federal legislation.
I’m not convinced that the long-term impact of the Court’s multiple, divided opinions will be that significant. Take the Spending Clause ruling. Seven justices agreed that Congress cannot use its power under the Spending Clause to “coerce” the states into making regulatory decisions they don’t want to make. But the 3-justice plurality and 4-justice dissent adopting that view are best read together as recognizing a very narrow limitation on Congress’ power to impose conditions on how states spend federal funds. Both opinions emphasized that Congress’ threat to deprive states of all Medicaid funding was extraordinary. Unlike previous cases in which the Court had upheld conditions on the use of federal funds, here Congress was threatening to deprive states of funding amounting to 10% of state budgets—a whopping fraction of state expenditures and a unique set of circumstances. As for potential applications in other circumstances, the Court declined to draw any clear line between conditions that permissibly “pressured” states and conditions that impermissibly coerced them. As the 4 dissenters emphasized: “Whether federal spending legislation crosses the line from enticement to coercion is often difficult to determine, and courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear.”
The Commerce Clause language is, if anything, less significant. Justice Roberts wrote only for himself in an opinion expressing his view that the individual mandate exceeded Congress’ power under the Commerce Clause. More, the part of the decision in which he advances this argument is not a part of the holding of the case. Having concluded, with the majority, that the individual mandate was a constitutional exercise of Congress’ power to tax, it no more mattered that Justice Roberts thought Congress couldn’t have enacted the mandate under the Commerce Clause than it would have mattered for him to think that Congress couldn’t have enacted it under the Declare War Clause. Good to know, but far from controlling law. More, the very narrow Commerce Clause novelty that most concerned Roberts and the dissenters is hard to picture recurring in federal legislation anytime soon. Indeed, in arguing that Congress lacked the power to regulate economic “inactivity”—that is, individual decisions not to purchase health insurance—the ACA plaintiffs hinged their case on the argument that the mandate was unique in U.S. history. On this point, the Commerce Clause justices seemed to agree.
In the end, both the majority and the dissent agreed that if Congress wants to make people pay taxes to help finance health care in this country, Congress has the power to do it. That leaves Congress a great deal of power over health care in particular. And a great reserve of regulatory power in general.
Deborah Pearlstein is an assistant professor of international and constitutional law at YU’s Benjamin N. Cardozo School of Law. The opinions expressed above are solely those of the author and should not be attributed to Yeshiva University.