[Note: This article is written in two parts, click here to read Part One.]

by Col. John Eidsmoe

As most of our readers are already aware, the Supreme Court released its ruling Thursday morning.  More eager to report it first than to report it correctly, television pundits stumbled over themselves as they read and reported, paragraph by paragraph, the Court’s complex decision.

To summarize:  the Court upheld most, but not all, of the Affordable Care Act (ACA).  To constitutionalists, the decision is a disappointment, but not a total disappointment.

Rather than giving a detailed analysis of the entire opinion, which is being done by others, I will focus upon a few highlights:

(1)  Not Justice Kennedy

As widely predicted, this is a 5-4 decision, but the votes did not line up exactly as expected.   The four liberal Justices, Ginsburg, Breyer, Sotomayor, and Kagan, voted to uphold most of the Act.  Three of the conservative Justices, Scalia, Thomas, and Alito, voted to strike it down.  All eyes were on Justice Kennedy, the swing Justice whose vote has tipped many recent decisions one way or the other; if there was to be a fifth vote in favor of the Act, it would have to be Kennedy’s.  But in fact Justice Kennedy sided with the conservative bloc and voted to strike down the Act in its entirety; in fact, Justice Kennedy authored and read the dissenting opinion.  The fifth vote to uphold most of the Act came from Chief Justice John Roberts, who also voted with the majority to strike down most of Arizona’s immigration act two days ago.

Does this mean the Chief Justice is moving to the Left?  Not necessarily.  Justices tend to be independent thinkers, and we’ll just have to watch and see what he does in the future.  Attorney David B. Rivkin, Jr., conducted an excellent symposium on the health care decision for the Federalist Society this afternoon.  In response to a question, he said the dissenting opinion of Justices Kennedy, Scalia, Thomas, and Alito sounded very much like a majority opinion, and the opinion of Justices Ginsburg and Sotomayor sounded much like a dissent.  He agreed that it is a good possibility that Chief Justice Roberts initially sided with the conservative bloc on this issue but changed his position during or after the deliberations.  The inner workings of the Supreme  Court are usually confidential, and we may never know what actually happened.

(2)  Not the Commerce Clause

The Court ruled that the “penalty” imposed for failure to comply with the individual mandate to buy health insurance cannot be justified as a regulation of interstate commerce.  This is more important than might at first appear, because it further limits Congress’s use of the Commerce Clause as a basis for government intrusion.  As the Court said, the power to regulate commerce does not include the power to compel commerce.

(3)  Not the Necessary and Proper Clause

The Court also ruled that the “penalty” cannot be justified by the “Necessary and Proper” Clause of Article I Section 8.   This too is important.  Section 8 delineates various powers delegated to Congress, and concludes by saying that Congress also has power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  This is sometimes called the “elastic clause” that can be stretched to cover anything not mentioned elsewhere.  But that’s not what it means.  The Necessary and Proper Clause does not grant any completely new powers.  Rather, the Clause must relate to a “foregoing Power” or a power delegated to Congress elsewhere in the Constitution.  For example, Section 8 authorizes Congress to establish post offices.  It says nothing about stamps, mail bags, or mail trucks, but one might reasonably argue that these are “necessary and proper” for the operation of post offices.  Today’s decision reiterates and reenforces the limited effect of the Necessary and Proper Clause.

(4)  But Instead, the Taxing and Spending Clause

Having ruled that the penalty cannot be justified by the Commerce Clause or the Necessary and Proper Clause, the Court then held that it can be justified as a tax under Section 8’s Taxing and Spending Clause.  But in order to do so, the Court had to construe the penalty as a tax.  The problem is, the ACA does not call it a tax, and when the bill was before Congress the Obama Administration emphatically denied that it was a tax.  The reason is obvious:  if it had been called a tax, it would never have passed in Congress.  And so, it is called instead a “penalty” and a “shared responsibility payment.”  (I hate it when government uses such sanitized terms to conceal what it is really doing!)  And in fact, it is not a tax.  Its clear and obvious purpose is not to raise revenue but to penalize those who refuse to conform to what the Administration wants them to do, i.e., buy health insurance.

Only later, when the constitutionality of the Act was challenged in Court, did the Administration’s lawyers argue that it could be justified as a tax.  The lower courts did not take that argument very seriously, but Chief Justice Roberts seized upon that argument as a way to justify the penalty.

In so doing, the Court majority ignored a basic principle of constitutionalism — respect for and deference to the other branches of government.   Congress and the Administration both chose to characterize the provision as a penalty, not as a tax.  By calling it a tax, the Court has effectively rewritten the Act, thereby engaging in one of the worst forms of judicial activism.

But wait a minute.  If this is a “tax,” then that brings into play Article I, Section 7, Clause 1, which begins, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on the other Bills.”  The reason for this clause is self-evident:  The people pay the taxes, so bills to impose taxes should originate with the legislative body that represents the people (until the 17th Amendment was ratified, Senators were chosen by the state legislatures).  And the ACA originated in the Senate, not the House.  So long as this was a “penalty” rather than a “tax,” that didn’t matter.  But now that Chief Justice Roberts has labeled it a “tax,” that raises new questions as to whether it was properly presented in Congress and properly passed.  It may be that one of the parties challenging the ACA could raise this issue in a motion for rehearing.

(5)  Some Protection of States’ Rights

The Act also required states to expand their Medicaid programs to include all nonelderly persons with incomes below 133% of the poverty level, and it further provided that states which do not comply with this requirement will lose all federal Medicaid funding.   This was a very significant threat, because the federal government requires the states to operate Medicaid programs but also provides substantial funding to the states for these programs.  For example, the State of Alabama’s budget for 2011 was $1.77 billion, $640.5 million of which was for Medicaid.  That $640.5 million is over one/third of the entire state budget.   But it is only 32% of the total Alabama Medicaid program; the federal government provides the other 68%, or $2.08 billion.

If Alabama refused to comply with the federal mandate to expand its Medicaid program, it would lose $2.08 billion in federal Medicaid funding — $410 million more than its total state budget.  I agree with those who say the federal government should not be involved with Medicaid programs at all, but singling out nonconforming states for this discriminatory treatment would be both coercive and crippling.

And on this point the Court ruled for the states.  This requirement, coupled with this threat of withholding Medicaid funds, effectively commandeers the states and forces them to perform functions that they cannot constitutionally be required to perform, and therefore the threatened penalty must be struck down as unconstitutional.  This is the brightest feature of today’s decision:  the Court has reenforced the principle of federalism by recognizing that there are powers reserved to the states with which the federal government may not interfere.   The fact that liberal Justices Ginsburg and Sotomayor strongly disagreed with the majority on this point, is in my judgment further evidence of this soundness of this portion of the opinion.

The Foundation for Moral Law, in an amicus brief filed in this case, focused heavily on this point as our main argument against the ACA’s constitutionality.  We are pleased that Court ruled in our favor on this very important point.

(6)  And the Long-Term Effect?

Chris Matthews said the Court today handed President Obama a legal victory but also handed Governor Romney a political issue.   Poll after poll has consistently shown the ACA to be unpopular with the American people.   Governor Romney declared this morning that what the Supreme Court failed to do on the last day of its current term, he will do on his first day in office — begin the process of repealing Obamacare and replacing it with a workable program.

Socialized medicine will be a major issue in elections this fall, and the concluding chapters have yet to be written.  Let’s hope we can establish a health care system that is consistent with free enterprise principles, and let’s pray that we can salvage the Constitution as well.


Dr. John Eidsmoe is a retired Air Force Judge Advocate and Alabama State Defense Force Colonel and Chaplain. He is also a constitutional attorney who has authored 13 books and and produced numerous audio and video lecture series, and holds five academic degrees in law, theology, and political science, as well as graduating from the Air Command and Staff College and the Air War College. He also holds a Fifth Degree Black Belt in Karate.