Positive Steps, Silver Linings
From the July 30, 2012, issue of NR

(Darren Gygi)


Jonathan H. Adler

The dissenters recognized that Congress could have employed any number of means to achieve its regulatory goal of reducing insurance premiums and helping insurers remain in business: “For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.” A “surcharge” is of course a polite term for a tax. We agree with the dissenters that, in enacting Obamacare, Congress did not actually avail itself of its broad authority to tax, and we believe it should be forced to exercise the tax power openly and directly.

More significant than Roberts’s resort to the tax power was the Court’s embrace of justiciable limits on Congress’s so-called spending power — that is, its ability to impose conditions on the receipt of federal funds. In striking down Congress’s attempt to coerce states to accept a dramatic expansion of Medicaid, the Court restrained the spending power for the first time in over 60 years. In South Dakota v. Dole (1987), the Court had articulated limits on the conditions Congress could place on a state’s receipt of federal funds, but then failed to enforce them, and only one federal appellate court had ever found these limits meaningful. In NFIB v. Sebelius, however, seven justices rejected the notion that Congress has free rein to impose conditions on federal funds. Given how often Congress seeks to use the spending power, the Court’s decision may open a new front in the war to reinvigorate constitutional federalism, and occasion a reexamination of statutes from No Child Left Behind to the Clean Air Act.

As the dust settles, we may begin to see that the legal consequences of the Court’s decision are both more limited and more significant than they may have first appeared. The power to tax is strong, but nothing in the Court’s opinion fundamentally expands its inherent dangers. The Commerce Clause has been stretched beyond anything that the Founders would recognize, but this was not the case to snap it back into shape. It was, however, a case in which to hold the line, and the line was held. And finally, the Court’s spending-power holding creates important new opportunities for challenging federal encroachments.

The post–New Deal remnants of our original constitutional order were very much at stake in this case, and although the mandate survived, at least for today those remnants still remain.

Jonathan H. Adler, an NRO contributing editor, is the Johan Verheij Memorial Professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. Nathaniel Stewart is an attorney and a co-author of the Heritage Foundation’s legal memo “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional.” This article appears in the July 30, 2012, issue of National Review.