Today, the Supreme Court issued its long-awaited decision on health care. The opinions, combined, added up to almost 200 pages, which I finally managed to get through. So a few smaller thoughts, and a big thought (on the controlling opinion by Chief Justice Roberts). First the smaller issues:
First, it seems quite clear that Roberts changed his mind at the last possible moment (that or Justice Scalia's hired some exceptionally sloppy clerks this term)-- Scalia's dissent reads like a majority decision (complete with reference to "Justice Ginsburg's dissent" and "the dissent"; Ginsburg did dissent in part, but as is, her partial dissent was one of three dissents (Scalia's and Justice Thomas's being the others). As is, he left in wording that makes it appear that Scalia had the rug pulled out from under him by Justice Roberts.
Second, Justice Ginsburg's concurrence is a gem. Probably the best opinion of hers I've read-- the argument is airtight, and she pauses to take what seems like a pretty thinly veiled shot across her friend Scalia's bow, pointing out that his dissent just kind of contradicts his own jurisprudence when she writes:
The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”
Third, Justice Thomas writes another classic dissent. It covers all of 5 sentences. Not pages, sentences. He cites three different opinions. Two are concurrences. One is a dissent. Meaning that none of the three is controlling. All are written by... Justice Thomas. You kind of have to admire someone who doesn't even pretend to care what the legal profession thinks. And no one cares less than Justice Thomas.
But my major thought, after reading the opinion, is that it's a plainly mediocre piece of legal reasoning, notwithstanding the Right's rush to brand Roberts a regular Judas and the Left's coronation, I just wasn't impressed with the opinion itself.. The way Roberts comes out on the Medicaid issue is troubling, and needs another post to be fleshed out, but, on the mandate, Ginsburg more or less eviscerates his case on the precedent. Roberts trots out the tired line that people like George Will (who walks and talks like a smart person until you read what he actually says) adhere to-- that buying insurance is an act of commerce and someone choosing not to buy insurance is not.
This distinction is, for practical purposes, nonsense. Here's why. It's true that buying insurance is an act of commerce. But carrying insurance is a commercial activity. Congress plainly has the power to regulate insurance that I already carry under the Commerce Clause. The missing piece is that, even if you haven't bought insurance, you're carrying health insurance all the time, whether you pay for it or not. This is because not having insurance is a risk transfer from you to society. Your health care is constantly being insured by everyone else. And, even if you don't use any health care services for 5 years, you're STILL carrying health insurance because you constantly carry that insurance, in the same way that you still have car insurance even if you go 5 years without crashing your car. The fact that the risk of injury is constantly transferred to others means that, unless your net worth is into 8 figures, you're constantly transferring risk to others, and so are carrying insurance. And regulation of who bears that risk is pretty clearly a regulation of interstate commerce.
It may well be that health care is unique in this regard-- the tired broccoli non-sequitur... is still a non-sequitur. Participation is voluntary, predictable, and affordable and, more importantly, no one is compelled to feed people who are starving. It's a good thing to buy a starving person on the street a cheeseburger. It's compulsory for a hospital to treat someone who's been hit by a car, whether they're Bill Gates or have $6.50 to their name. That's not the case in any other market I can think of.
Now, this could all be meaningless going forward-- while Roberts has drawn a pretty sharp line in the sand on the commerce clause, there aren't any other markets I can think of in which the government might seek to mandate purchase of a product because everyone is involved in the market, and the market is one in which participation is both irregular and expensive. But then the founders couldn't have contemplated the health care market turning into the albatross it's become, so the precedent is troublesome for future generations in that regard.
But I'll take the outcome. For public policy reasons, partisan score-keeping aside, a bill that seeks to make health care affordable for everyone, limit costs, and mitigate distortions in the health care market isn't just acceptable under the Constitution-- it's also a morally good thing.
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