Constitutional law expert and former SCOTUS clerk comments on ACA decision

“I expected the Court to uphold the Affordable Care Act (ACA), however, two elements of this decision are very surprising: the fact that the mandate survives under the taxing power while failing under the Commerce Clause and Necessary and Proper Clause, and the fact that Chief Justice Roberts was in the majority without Justice Kennedy,” says Gregory Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis.

“Kennedy has been a true swing vote on big federalism cases, more often siding with the conservatives, so his position here isn’t completely stunning,” he says. “But the two positions taken together — Roberts and Kennedy — are a surprise.


“Roberts’ vote looks to me, as a first impression, like a brilliant piece of judicial strategizing.”

Magarian is a former U.S. Supreme Court clerk 
for Justice John Paul Stevens. Below are Magarian’s comments on the decision and its impact.

Magarian’s comments on the decision

The court upholds the ACA in its entirety, although it imposes a constraint on the expansion of Medicaid.

This is about as splintered a court as you will ever see, at least on the majority side. Chief Justice Roberts is the deciding vote, with Justice Kennedy in dissent.

The court holds that the individual mandate does not pass constitutional muster under the Commerce Clause or the Necessary and Proper Clause. However, the mandate survives under Congress’s taxing power. The fact that the act calls the noninsurance payment under the mandate a “penalty” allows the suit to go forward (notwithstanding the anti-injunction act), but that “penalty” label does not stop the court from treating the payment as a tax for purposes of constitutional analysis.

As far as I can tell, the four liberals would uphold the mandate under the other constitutional provisions as well. Roberts is the true swing vote.

On Medicaid, Roberts — joined by Breyer and Kagan — says that Congress can expand Medicaid but can’t take away states’ existing funding if they don’t go along with the expansion. Ginsburg and Sotomayor think that’s not a problem, but all five agree that the proper remedy is simply to read the Act as not imposing that sort of penalty on the states. So technically, the court does not find that even that part of the statute is unconstitutional.

The four dissenters file a jointly authored dissent — very unusual, if not unprecedented — along with a separate dissent by Thomas. I haven’t read them yet, but I expect they’re blistering; Kennedy apparently summarized the joint dissent from the bench.

It’s also worth noting that the court’s main holding, on the taxing power, is very odd. The court first holds that, because the government called the mandate payment a penalty rather than a tax, the suit isn’t barred under the anti-injunction act (a federal law that requires you to pay a tax before you can challenge the tax in court). But then the Court turns around and says that it can characterize the payment as a tax based on its own independent analysis. That’s a very quick shift from formal to substantive reasoning, and while it isn’t obviously wrong — maybe it’s just nuanced — it is odd.

Magarian discusses the impact

The result here is an unqualified victory for the Obama administration and a qualified victory for federal power. As to the act itself, implementation can proceed now without any complications (other than the slight weakening of the government’s hand on Medicaid).

Chief Justice Roberts, here and in the Arizona immigration case, has emerged as a new generation of judicial conservative. He isn’t preoccupied with the state power wars that have dominated constitutional discourse since at least the Civil Rights era. Instead, he appears to be more of a national security conservative, someone who is comfortable letting the federal government regulate a broad range of conduct. He also isn’t any kind of a libertarian, except on certain First Amendment issues.

Roberts has threaded several needles here very carefully, and I think I know why. He’s in charge of the court’s institutional reputation. The best thing for the court is to make the fewest waves possible. This case was going to make waves one way or the other, but I’ve always thought the court would ultimately take more hits if it struck down the ACA — charges of judicial activism, body slams from a President up for re-election, lingering questions about how the Court parsed the law (because, if it had struck the act down, it would have had to wade into severability).

Roberts may have voted to uphold the law primarily to avoid those results, and then he wrote an opinion that gives everyone something rhetorically (and perhaps precedentially) while reaching a firm result that sustains the status quo.