The Broccoli Decision

After all the press that broccoli and the Affordable Care Act has received over the past couple of months while waiting for the SCOTUS decision on the Affordable Care Act, I have dubbed it "The Broccoli Decision" after the question about whether or not finding the Act constitutional under the Commerce Clause would pave the way for the Court to find that Congressional mandates on grocery shopping and other healthy activities were also Constitutional.

On June 28, 2012 Chief Justice John Roberts, in a 5-4 decision made it clear that SCOTUS was not interested in breaking new Constitutional Law ground and finding the ACA constitutional on the Commerce Clause arguments.  Even though 4 of the Justices felt that the individual mandate was constitutional under the Commerce Clause, they did not represent the majority, even though the Act was upheld.  Roberts spoke out against the individual mandate and indicated that if the supporters of the Act had only defended its constitutionality on the basis of the Commerce Clause, he would have ruled that it violated the Constitution, sided with the other four Justices, and struck it down on those grounds.  He wrote in his opinion:

"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."

He went on to say that finding the Act constitutional under the Commerce clause would "compel" people to act, which comes perilously close to legislating for the general welfare - a power reserved to the states under the doctrine of state "police powers." The line between taxing and spending for the general welfare and outright legislation for the general welfare is a narrow line with a very steep drop-off.  In his remarks and his written opinion, the Chief Justice made it clear that he did not find the Act constitutional under the provisions of the Commerce Clause.  The early Tweets and postings by CNN and other news organizations indicating that Roberts struck down the "individual mandate" were correct even though the Act was ultimately upheld.  In his remarks to the press, Roberts expressed his concern that if the Justices were to find the Act constitutional under the Commerce Clause, it would open the door to regulating specific individual behaviors under the Commerce Clause, even in situations where individuals were choosing not to act.

While I am pleased and relieved on a personal level to know that the Act was upheld and many Americans (my daughter included) will not be denied health care for circumstances beyond their control, I am even more relieved that Chief Justice Roberts found that the Act was not constitutional under an expansion of the Commerce Clause.  Many of my more liberal friends have insisted that a win is a win, and what does it really matter that it was found Constitutional as a result of the tax provision rather than the commerce provision?  My answer to them: it matters a lot.

Many private actions that we take for granted - what food we buy (broccoli - to use the example picked by SCOTUS), where we worship, what car we choose to drive, and what organizations we will support with our money and our time all impact commerce in one way or another.  It is foolish to believe that granting or recognizing the power of the government to compel private action in this matter would be limited only to this matter.  That's not the way that legal precedence works.  Once created, precedence is then used to justify other laws and actions which can have unexpected and unforeseen consequences.

An example of this is the recognition of corporations by the federal courts as legal "persons."  That precedent opened the door to allowing corporations to make donations to political campaigns and fund special interests.  It is likely that when corporations received legal recognition as persons, those who supported the idea did not fathom that this decision would open the door to recognizing them as "persons" for the purposes of Free Speech and campaign finance laws.  Yet, because the precedent had been created to treat corporations as legal persons, it allowed the Supreme Court to uphold the law in the Citizens United lawsuit, even though there was strong public sentiment against the law.

The recent anger and outcry from the public regarding the Citizens United decision in Montana underscores what happens when "We The People" feel like the fairness and impartiality of the Federal Courts have been compromised by special interests and political gain, even in situations where precedent not only allows it but may also require it.  The Montana ruling is as much about the power of legal precedence and the need to uphold the integrity of the legal process as it was political maneuvering and legitimizing special interests.  Unfortunately, sometimes protecting the integrity of the precedent allows for manipulation and exploitation of the process.  Once rights are granted, it is very hard to take them away again.  The State of California found that out when the 9th Circuit Court found that California violated Federal equal protection provisions when it took away from gays and lesbians the right to get married after it had already recognized their right to marry. The Federal Court found California's constitutional amendment limiting marriage to only a man and a woman as the removal of a fundamental right that had previously been granted to all citizens of California regardless of their orientation.  In its opinion on Prop 8, the 9th Circuit found that a state does not have the right to take away a fundamental right once it has been granted, even though the voters had approved the constitutional ban and had arguably followed the required due process.

In choosing to speak out against the "individual mandate" and instead uphold the law through the tax argument that was put forward by the Obama Administration, Roberts struck a blow for the restoration of individual liberty and a more conservative and rational interpretation of the constitution and the constitutional limits on the powers of the Legislative and Executive branch.  Again, from Chief Justice Robert's opinion:


"The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”

We, the citizens of the United States, can reasonably judge when the law requires us to do something, or when it tells us we must follow it or pay for the privilege of disregarding it vis-a-vis a fine or a tax.  We are suspicious of any law that requires us to act in a particular manner or purchase a specific produce, even if it is for the good of the whole.  If the Commerce Clause had been used as the majority justification for upholding the Affordable Care Act, it is reasonable to believe that a significant percentage of the American Public - both Democrat and Republican - would have felt that the court bowed to special interests and failed to uphold the values of individual liberty, freedom, equality, and self-determination that we collectively as a nation hold as a sacred trust between ourselves and our elected leaders.   We would have felt a betrayal of our core identity as a nation and the values that created the Constitution and the foundation of our government. 

These values of individual freedom and self-determination are embodied in our Constitution and the body of  Constitutional Law that continues to define and shape its boundaries.  We, as a nation, expect, and may reasonably demand, that the highest court of the land follow its precedents, construction, and tradition when weighing whether or not a law is Constitutional.    We trust that our elected officials, and those that they appoint to represent the citizens of the United States, acknowledge that tradition and recognize their duty to uphold it, regardless of the political cost.  Today, Chief Justice Roberts showed that he took that responsibility seriously when he refused to uphold the Act under the Commerce Clause, yet recognized the injustice that would be done if the taxpayers continued to foot the bill and subsidize health care for those who were not insured.  He found that even though the word used in the Act was "penalty," it was at its heart a fine or tax on those who chose not to purchase health insurance, and followed the general guidelines as other taxes and penalties assessed and collected by the IRS.

Regardless of whether or not Chief Justice Roberts' actions were politically motivated or not, it is inescapable that his refusal to find the Act constitutional under the Commerce Clause and only found it constitutional under the more narrow and well-defined Taxing and Spending provision created an important precedent that limited federal powers and preserved individual liberty.  Individual freedoms are not only found in the Bill of Rights, they are woven throughout the entire fabric of the Constitution.  The Founding Fathers were deeply suspicious of any law that required specific and affirmative action on the part of private citizens.  They also were skeptical that the government would voluntarily limit its own power, especially when it believed it was acting in the best interests of the citizenry.  The Founding Fathers knew from experience that legislating for the general welfare was a dangerous precedent to set, because the definition of what was beneficial was easily swayed by political and financial gains.  It is reasonable to believe that the Founding Father's would have seen the merits of the "individual mandate" yet would have felt that it compromised individual liberties beyond tolerance.

There are days when I question whether or not this country is on the right track.  There are times when I question whether or not the system is rigged, that everything we stand for as a country is built on a house of cards, and that federal justice system is a just scapegoat for the political whims and interests of those in power.  Some days I wonder if the Constitution really is a living document and "We the People," are more than just pretty words on an antique piece of stationery. 

Thanks to Chief Justice John Roberts and today's historical decision, today was not one of those days.