Lose the Battle, Win the War
Speculating about what motivated Chief Justice Roberts to side with his more moderate-to-liberal colleagues may be fun, but it misses one salient point: except for the jurisdictional question (where the Court was unanimous) and the end result (the ACA survives), the Chief Justice, in fact, never sided with Justice Ginsburg and her colleagues on the left. Indeed, the Chief Justice came to his answer in a way anathematic to liberals and consistent with conservative legal theory of the past few decades.
As we discussed yesterday, the Court upheld the ACA as a legitimate exercise of Congress's taxing power, but 5 justices rejected the idea that the individual mandate was permissible under Congress's authority to regulate interstate commerce. How we get to a pro-ACA result may not worry some progressives, but it worries me.
Since the 1970s, conservative legal scholars and jurists have been trying to narrow the scope of federal interstate commerce power, which ballooned when the Court acceded to President Franklin Roosevelt's will and started upholding New Deal legislation. Before 1937, a conservative Court kept tossing out progressive legislation — a maximum hour in a workday law here, a minimum wage law there, even a public works program — as a violation of individuals' freedom to make their own contracts in a free market. Imagine what it would be like if laws like the ACA had been struck down every other month! Progressive legal scholars like Louis Brandeis and Felix Frankfurter rejected this intransigence. The judiciary, they said, should exercise restraint when it came to the will of the elected branches in passing social and economic legislation. After all, Congress's power to regulate interstate commerce gives it wide latitude. And, after the "court packing" scheme and FDR's appointments to the Court, there was very little that did not fall under interstate commerce — prices, wages, Social Security, health care, and many other areas too numerous to list. (In 1939, the Court had the beginnings of the New Deal majority) (left).
Conservatives have been fighting back for decades, seeking to roll back Congress's power under the Commerce Clause. And, they have started to succeed. In Lopez, for example, the Court said that the Commerce Clause did not give Congress the power to ban guns from schools. States could do that; Congress could not because bringing a gun to school has nothing to do with interstate commerce. Under pre-Lopez Commerce Clause precedents, though, the interstate commerce rationale would have been easy: the gun, parts of it, most likely came from another state and Congress has an interest in cutting off the use of weapons that you obtain as a result of interstate commerce.
Yesterday's decision rejecting Congress's power to order Americans to buy health insurance under the Commerce Clause may further narrow the federal government's authority to pass social and economic legislation. Not buying health insurance clearly has an effect on interstate commerce, as Justice Ginsburg wrote in her concurrence/dissent. But, that effect was not enough to reach the threshold for the new Commerce Clause. In this way, the ACA decision was a victory for conservatives. They may have lost the battle on health care, but they are winning the war on the reach of federal power.
The Double Standard Canard
Progressives are cheering a "breath of fresh air," to use one congressman's phrase, from a conservative Court. Afraid the Court would reject the ACA, many on the left were anticipatorily decrying the conservative majority's "judicial activism" and demanding "judicial restraint." To my disappointment, even President Obama got into the act. But, after the pro-ACA decision came out, conservative commentators on FOX News challenged liberals: if you want the Court to respect the will of the people when it comes to health care, you have to accept it in other areas, like on DOMA and gay marriage.
That misleading argument only befits simpletons. Progressives can honestly argue for upholding the ACA and overturning DOMA while retaining intellectual integrity.
The ACA is a piece of economic legislation. DOMA discriminates against a traditionally unpopular group and does so without reason. Judges should consider those laws differently. On the one hand, long-settled precedent tells us that judges evaluate economic legislation passed pursuant to Congress's commerce power for a rational basis, the most permissive form of judicial review. The law must regulate activity that has a substantial effect on interstate commerce and be rationally connected to that effect. On the other hand, laws that classify on the basis of sexual orientation should receive, at a minimum, so-called "rational basis plus," or a more searching form of review. I agree with President Obama that state action that discriminates against gays should receive heightened scrutiny, but even if that argument never wins the day, DOMA must pass a tougher standard of review than the ACA.
And, that makes sense. The ACA is a legitimate exercise of some Congressional power. DOMA is not. DOMA was passed with little Congressional investigation, no hearings, and based on pure fear and homophobia. The Republicans' proffered rationales — promoting opposite-sex marriage, maintaining the status quo, protecting children — have nothing to do with DOMA's denial of federal benefits associated with existing same-sex marriages. It is hardly a jump to say that the ACA can stand while DOMA cannot.
The HIV-Positive Community Will Benefit, But Not Enough
The pre-ACA health insurance market largely failed the nearly 1.2 million Americans with HIV. Free to charge whatever they want, insurance companies extorted huge premiums out of applicants with HIV; free to deny coverage to those with pre-existing conditions, many companies simply said no to HIV-positive Americans; and, free to cap benefits, insurance providers stopped paying for life saving procedures and drugs when the costs got high. What’s more, the “patchwork of public programs,” according to Lambda Legal’s HIV Project Director Scott Schoettes, created a woefully inadequate safety net, leaving approximately 30 % of the HIV-positive population uninsured.
Many of the ACA's reforms will put an end to the debilitating discrimination that is exacting a staggering public health toll. But, by holding that the federal government cannot withhold all Medicaid funding from those states that refuse to reform their Medicaid programs in accordance with ACA reforms — thus, turning the Medicaid expansion into an optional program — thousands of Americans with HIV will still be left out in the cold. If Red States decline to expand Medicaid in their states out of some ideological intransigence, their HIV-positive citizens will suffer. Therefore, our lobbyists and allied lawmakers should work toward restoring the Medicaid expansion in some way, either through using a less onerous stick to ensure compliance or by expanding access to the program in other ways. Unfortunately, given the current Congress, both options seem unlikely.
As with most important legal decisions, there are multiple interpretations and multiple victors. Sebelius preserved the ACA, and that irks conservatives, but it did so in a way that should please conservatives in the long run. It also gut the ACA's Medicaid expansion, which will have deleterious effects on the HIV-positive community. But, these developments should not hide the facts that (a) the President's signature legislative achievement survives, and (b) upholding the ACA is very much consistent with a judicial philosophy that will strike down DOMA and other antigay laws.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.