Institute for Justice Comments on ACA Decision

John Kramer
John Kramer · July 16, 2012

Arlington, Va.—In upholding the Affordable Care Act in a 5-4 decision today, the U.S. Supreme Court has authorized the most significant expansion of federal power since the New Deal. Before now, Congress had never asserted—and the Supreme Court had never authorized—the constitutional authority to require individuals to engage in economic transactions against their will. In approving this unprecedented assertion of congressional authority, the Supreme Court has abdicated its responsibility to enforce constitutional limits on government power. Today’s decision represents the culmination of decades of reflexive deference to other branches of government and a stark failure of judicial engagement.

This failure is all the more inexplicable and troubling because, at the same time that the Court vastly expanded Congress’ taxing power, a majority of justices recognized limits on Congress’ power under both the Commerce Clause and the spending power. The portion of the decision upholding the individual mandate as a valid exercise of the taxing power is breathtaking in its scope and opens a Pandora’s box of potential regulations in the guise of taxes. The Court held that although Congress lacks any specific textual authority to force people to buy health insurance, it may use its taxing power to coerce them to do so. The implications of that holding are profound.

“Today the Supreme Court extended its deeply misguided theory that allows Congress to use its authority to collect taxes for the general welfare to pursue ends and exercise powers not granted by the Constitution,” said Chip Mellor, president and general counsel of the Institute for Justice. Mellor continued, “The seeds of today’s decision were sown during the New Deal, when the Supreme Court largely withdrew from its role as an independent check on federal power. Despite Chief Justice Robert’s attempt to minimize potential for the tax power to be used even more coercively in the future, his assurances do not bind future Congresses. The prospect of using the newly enhanced taxing authority to coerce individuals will be too seductive to resist.”

Institute for Justice Senior Attorney and Director of the Institute’s Center for Judicial Engagement Clark Neily explained, “Today’s decision upholding the Affordable Care Act represents a failure of judicial engagement and a glaring example of judicial abdication. In his majority opinion, Chief Justice Roberts uses an ordinary power to achieve an extraordinary result: conferring upon Congress the power to radically transform the national healthcare system and micromanage individual choices within that system in a manner that destroys the very concept of enumerated powers. In transforming the garden-variety power to raise revenue into a plenary power to conscript individuals and override their personal choices, the Supreme Court has failed in its most basic duty to engage the facts of each case and fully enforce constitutional limits on government power.”

The Court’s abdication on the issue of the taxing authority stands in stark contrast to the holdings on the Commerce Clause and spending power. A majority of the justices—Chief Justice Roberts and the dissenting justices—agreed that the individual mandate exceeded the power under the Commerce Clause and that Congress could not force people to engage in unwanted commercial transactions. The majority decision also found the ACA violated Congress’ power under the spending power, which was a decision that surprised many because the Court has always interpreted that power expansively. These decisions showed true judicial engagement, as advocated in the Institute for Justice’s friend of the court brief: “Reflexively deferring to Congress’ enactment of the individual mandate is an abdication of the judicial duty owed to the American people to enforce and support the Constitution. If courts cannot find and articulate meaningful limits on the federal government’s enumerated powers, the entire constitutional architecture collapses.” These words were echoed in Chief Justice Roberts’ explanation of his rejection of the commerce power as authorizing the individual mandate: “Our deference in matters of policy cannot, however, become abdication in matters of law. . . . And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits.”

Although the Court is beginning to recognize the importance of judicial engagement, in this case it failed to act upon that recognition. Sadly, today’s decision is in keeping with other decisions of the Roberts Court, which has so far struck down laws at a substantially slower rate than earlier courts according to a New York Times analysis. And a 2011 Institute for Justice report, titled Government Unchecked, found that, in general, charges of rampant “activism”—defined as striking down laws—are wildly overblown. The IJ report, drawing on similar data to the Times’ and other analyses, found the proportion of federal and state laws struck down by the Supreme Court to be miniscule: less than two-thirds of one percent of federal laws passed and less than one-twentieth of one percent of state laws passed. Today’s decision upholding the Affordable Care Act represents an extreme manifestation of this persistent deference towards other branches of government.

“The culprit here is the Supreme Court’s reflexive deference to Congress and the unwarranted presumption of constitutionality that courts grant to most legislation,” Mellor said. “For America to enjoy the fruits of the constitutionally limited government the Framers envisioned, courts must get back in the business of judging the constitutionality of government action, instead of finding some way—any way—to uphold it, as the Supreme Court did today.”