By Fred Smith, San Francisco Chronicle
Chief Justice John Roberts deserves praise. His opinion upholding the bulk of the Affordable Care Act was as clear as it was courageous. Yet, even as the chief justice voted to uphold the act, he did not follow what he has called the “cardinal principle” of judicial restraint.
According to the chief justice’s prior statements, judges should only opine about what is necessary to resolve the disputes before them, not unnecessarily break new legal ground. “If it is not necessary to decide more, it is necessary not to decide more.”
With respect, on Thursday he broke this rule.
When the court reasoned that the individual mandate was a constitutionally permissible tax increase, that could have ended its analysis.
Yet, writing for the majority, the chief justice broke new legal ground by deciding that the mandate was not sustainable under Congress’ powers to regulate interstate commerce. The court’s commentary may contain harbingers of what is to come.
In particular, Roberts staked out a new role for courts to superintend what legislation is “proper” and what legislation is not. Article I of the Constitution is clear that Congress may do what is “necessary and proper” to carry out the powers vested in that body.
As the court’s majority acknowledged, the individual mandate is a necessary precondition for Congress to enact its legitimate goal of prohibiting insurance companies from discriminating on the basis of pre-existing conditions. Otherwise many individuals would logically wait until they were sick to get health insurance, and premiums would skyrocket.
But, Roberts concluded, even if the individual mandate were necessary, it was not “proper” because it undermined the “structure of government” and “spirit of the Constitution.” The mandate is improper because it seeks to regulate people beyond “those who by some pre-existing activity bring themselves within the sphere of federal regulation.”
This is reminiscent of the strict analysis the court already undertakes when it decides whether legislation is “appropriate” under the Fourteenth Amendment. That amendment grants Congress the power to pass “appropriate legislation” in service of equal protection or fundamental rights. Thus, the U.S. Supreme Court has invalidated portions of the Religious Freedom Restoration Act, Family Medical Leave Act, Americans With Disabilities Act, the Violence Against Women Act, and Age Discrimination in Employment Act, all on the grounds that some aspect of those laws were not constitutionally “appropriate.” Many commentators expect that the court may invalidate Section 5 of the Voting Rights Act on the basis it is not “appropriate.”
Just as the court has invalidated legislation it deemed not “appropriate,” Thursday’s opinion empowers federal courts to invalidate laws viewed not to be “proper.” As a former student asked me Thursday, is the Endangered Species Act “proper” even though animals have not voluntarily brought themselves within the sphere of federal regulation?
What about laws that prohibit discrimination in hiring? After all, isn’t failing to hire someone an inactivity, rather than an activity?
The precise metes and bounds of Roberts’ new restriction on congressional power are undefined for now. But one thing is clear. This opinion represents the first time the court has so evidently given itself the power to invalidate laws because they were not “proper.”
Depending on one’s perspective, the court either properly reined in an overreaching Congress or we are one step further from a representative democracy than we were before the decision was rendered.