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Digging Deeper Into Ginsburg's Obamacare Opinion

Legal experts across the ideological spectrum have speculated on the dangers lurking in Chief Justice John Roberts' narrow opinion in upholding the Patient Protection and Affordable Care Act. While some disagree on the decision’s potential impact in future cases, it certainly suggests a basis for limiting Congress’ legislative authority. Justice Ruth Bader Ginsburg, in her strong defense of the constitutionality of the ACA under the Constitution's commerce clause, points out the dangers of Roberts’ approach.

Justice Ginsburg makes two important arguments for upholding the ACA under the commerce clause. First, legal precedent demands that the Court examine federal laws as practical solutions to national problems. In fact, Ginsburg’s concurrence cites Justice Anthony M. Kennedy – who voted against the ACA’s constitutionality – as writing that interstate commerce regulation should be viewed as a “practical” matter.

What this means is that the Court should have considered the ACA in light of the unique circumstances surrounding the nation’s health care crisis (rising cost of insurance and care, increasing number of uninsured Americans, etc.).

The opinion describes multiple states’ attempts to reform the health care industry. Ginsburg notes that most attempts at reform sought to guarantee coverage and access to insurance but failed because individuals would refuse to pay for insurance until they needed it the most, thus driving up insurance costs. Massachusetts, the first state to require that all citizens purchase health insurance, demonstrated that an individual mandate to buy health insurance could control those costs while providing near-universal coverage. Thus, members of Congress knew that any attempt at reform that preserved a major role for private insurers would need a requirement that all Americans purchase insurance.

Viewed as a “practical” matter, the individual mandate was a permissible and necessary exercise of Congress’ power to regulate commerce.

Second, the opinion written by Roberts (and expressed separately by Justices Kennedy, Scalia, Thomas, and Alito) places unreasonable restrictions on the commerce clause. Justice Ginsburg observes that the Supreme Court’s prior cases on the commerce clause expanded Congress’ powers in regulating activities that have an impact on interstate commerce. The Roberts opinion -- while admitting that activities that substantially affect interstate commerce are subject to the commerce clause -- created unfounded distinctions to limit those powers, arguing that the individual mandate sought to regulate economic inactivity, rather than activity in which people already engage. In reality, 60% of uninsured Americans will seek medical care in any given year, while 90% certainly will within five years, which indicates that even those who choose not to purchase insurance still are participants in the health-care market.

The Constitution, Ginsburg says, clearly affords Congress the authority to regulate a choice that has such a tangible impact on interstate commerce.

The commerce clause is the basis for many important pieces of legislation, such as the Civil Rights Act of 1964. If an uninsured citizen’s refusal to purchase medical insurance, leading to his later medical costs being shifted to others -- what Roberts and the dissent call “inactivity”-- may not be regulated under the commerce clause, what’s next? Will the Court decide that refusing to serve racial minorities at a restaurant or a hotel is also “inactivity”? What about refusing to sell contraceptives? Refusing to install wheelchair ramps? Or deciding not to participate in air-quality controls?

The Roberts Court may have made it a lot easier for opponents of these laws, and many others based on Congress’ power to regulate interstate commerce, to challenge them in court. If and when they do, legal experts and the justices themselves will certainly look to the opinions of Roberts, Kennedy, Scalia, Thomas, and Alito in Affordable Care Act case to determine the limits of congressional authority under the commerce clause.