The Supreme Court stood a great deal of conventional political wisdom on its head today by upholding the bulk of the 2010 Affordable Care Act—the landmark law instituting something like universal health care in these United States. Oral arguments over the ruling—National Federation of Independent Businesses v. Sebelius for all you case-law geeks out there—strongly suggested that the high court would strike the law down, finding that the “individual mandate” (the requirement for all Americans to purchase some sort of health coverage) was a violation of the Commerce Clause. This outcome indeed seemed so certain among the chin-wagging pundit set that both CNN and Fox News ran early banner headlines erroneously announcing that the Roberts Court had overturned the health care law.
But the court pursued another interpretation entirely—the majority opinion, authored by Chief Justice John Roberts, conceded that the mandate was not in accordance with the Commerce Clause, but went on to argue that the ACA is actually a tax. The penalty that the government will assess on individuals who do not purchase insurance under the act “is not so high that there is really no choice not to buy health insurance,” Roberts reasoned. He went on to argue that “the payment is not limited to willful violations as penalties for unlawful acts often are; and the payment is collected by the IRS by the normal means of taxation.” Thus the most ambitious piece of social legislation enacted over the past 70 years was found constitutional by a sort of exercise in forensic accounting.
In reality, of course, the Roberts decision was issued in a political minefield—and for all the high court’s close readings of legislative intent and efforts to divine an “originalist” message in the Constitution, the Supremes are always mindful of the political nature of the work they do, and the profound and ongoing fallout it can generate. In the new issue of Bookforum, Dahlia Lithwick delivers a prescient look at the politics of contemporary constitutional theory and the Roberts Court.
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