(c) by Steve Brodner Chief Justice John Roberts's decision to join the Supreme Court's liberal wing in upholding the individual mandate of the Patient Protection and Affordable Care Act of 2010 has provoked a wide range of responses today. Some have hailed it as an act of heroism; others see a purely tactical retreat, or, worse, some variety of Machiavellian trickery.

To fully understand how Roberts reached his decision to uphold the individual mandate provision of the PPACA, we must look back to the period of 1986 to 2005, when the Court was led by Roberts's immediate predecessor and mentor, the late Chief Justice William Rehnquist.

Today's decision centers on two related constitutional questions: the scope of the Commerce Clause and the role of the doctrine of federalism. After decades of allowing Congress to expand federal authority, the Court, under Rehnquist, began increasingly to insist that newly passed federal laws were impermissible attempts to impinge upon the rights of state and local governments. This so-called "federalism revolution" began after Rehnquist was appointed Chief Justice in 1986 and continued through the 1990s. Two of Rehnquist's greatest triumphs in the area were 1995's U.S. v. Lopez (holding that possession of a gun in a school zone did not affect interstate commerce and thus was not activity amenable to regulation by Congress) and 2000's U.S. v. Morrison (holding much the same about violence against women), for both of which Rehnquist wrote the majority's opinion.

Roberts clerked for Rehnquist at the Supreme Court from 1980 to 1981 and maintained a close personal relationship with him over the next twenty-five years. Former solicitor general Walter Dellinger, who correctly noted today's outcome as a possibility beforehand, said in 2005, "It's hard to imagine a choice more similar to Chief Justice Rehnquist than John Roberts." Although Roberts clerked for Rehnquist years before the first shots in the federalism revolution were fired, it is no surprise that he shares his mentor's ideals with regard to constraining federal authority and wishes to preserve Rehnquist's accomplishments.

Roberts's opinion is accordingly laden with citations to the major federalism cases of the Rehnquist era. Early on, Roberts cites US v. Morrison and New York v. US for general principles of federalism, then cites Bond v. US, a year-old case in which the Roberts Court held that a criminal defendant had standing to defend herself by arguing that the federal law under which she was charged violated the Tenth Amendment, one of the key restraints on federal action. Roberts's message is clear: federalism is alive and well in today's Court.

As he proceeds, however, Roberts looks much less like Rehnquist than like one of Rehnquist's chief allies in the federalism revolution, former Justice Sandra Day O'Connor.

O'Connor cast the deciding vote in US v. Morrison and very often voted with Rehnquist. Unlike Rehnquist, however, she was often the Court's swing vote, as Roberts was in the PPACA case. O'Connor famously used her leverage as the swing vote to engineer narrow, case-specific rulings, splitting the proverbial baby in important cases such as Planned Parenthood v. Casey (allowing a very high regulatory burden on abortion while upholding Roe v. Wade) and Grutter v. Bollinger (finding one affirmative action program in place at the University of Michigan unconstitutional while upholding another). As a result, O'Connor was decried as political in her decision-making, and denounced by, among others, Justice Antonin Scalia.

I suspect Roberts would have negotiated a compromise that involved severing the individual mandate if it had been available to him. However, the Court's liberal and conservative wings offered him no such opportunity. It's unsurprising that the liberal justices were fully committed to upholding the mandate. What's somewhat more surprising is that all of the four conservative justices were fully committed to rejecting the PPACA in its entirety, leaving Roberts with a deeply unappealing set of choices: siding with the court's liberal wing and potentially vastly expanding federal power as a consequence, or joining the conservatives in their almost gratuitous defiance of the Obama administration and potentially injuring the legitimacy of his office for years to come.

Instead, with O'Connor as his model, he deftly slaloms past obstacle after obstacle on his way to a clever compromise. Applying Rehnquist Court precedent, he finds the individual mandate is impermissible under the Commerce Clause. He finds much the same with regard to the Necessary and Proper Clause, repeatedly tipping his hat to the Court's 2010 decision in US v. Comstock, and in particular Justice Kennedy's assertion assertion in his Comstock concurrence of federalism concerns in the context of the Necessary and Proper Clause.

Then the other shoe drops. "That is not the end of the matter," Roberts writes. Having already determined that the mandate is not a tax for the purposes of the Anti-Injunction Act, he asks: is it possible the individual mandate might be a new variety of tax, one that is constitutionally permissible as a valid exercise of Congress's taxing authority? In this area, Roberts is largely free of the influence of the Rehnquist Court, which issued only 28 substantive tax law decisions in 19 terms.

Armed with musty volumes from the Supreme Court library, Roberts sets to work, citing cases from the 1930s and 1940s and Justice Story's commentaries from 1830, finally reaching the 1796 case of Hylton v. US. Roberts notes the Hylton court's approval of capitations: a category of direct tax paid by every person "without regard to... any other circumstances." If one may be taxed for the mere fact of one's existence, he reasons, one may also be taxed on the basis of one's economic inactivity. The mandate survives as a tax.

Roberts's Rehnquist-meets-O'Connor compromise serves his purposes brilliantly. He avoids war with the White House and protects the Court's legitimacy while preserving the Rehnquist Court's federalism jurisprudence in its entirety and handing the president and Congress an unwelcome label for the individual mandate: it's a new federal tax. If you needed any further confirmation that Roberts is both a remarkable legal thinker and a very canny individual, look no further than today's decision.

 

Richard D. Allen is a writer and attorney in private practice in Durham, North Carolina. His website is www.allenlawnc.com.

Image by Steve Brodner for
The Washington Spectator.