The month of June is exciting for Supreme Court watchers because the Court often hands down its most complicated cases at the end of the term. But, it can also be frustrating for people like me—a lawyer and a Constitutional Law professor—because so many journalists, pundits and activists misunderstand the decisions. If Christians believe that God is sovereign over all of life, including government, then it is important for us to pay attention. We are going to be talking a lot about healthcare over the next several years, and we need to begin by understanding what actually happened in National Association of Independent Businesses et al v Sebelius, Secretary of Health and Human Services, et al.
In high school many of us learn about separation of powers and federalism. We may promptly forget these terms as soon as we take a civics test, but the concepts are crucial for understanding what the Supreme Court does. Separation of powers tells us that legislators make the law and the role of the Supreme Court is not to tell us if those laws are good, but rather whether those laws are consistent with the Constitution. Federalism separates legislative responsibility between the federal and state governments. State governments have wide powers but the federal government has only those powers expressed in the Constitution. If the federal government passes a law, it must be able to pinpoint the place in the Constitution that provides the source of whatever power it is exerting. If Congress tries to pass a law for which it has no power, the Supreme Court calls that law unconstitutional and the law is overturned.
The recent healthcare decision tested the constitutionality of the Affordable Care Act passed by Congress in 2010. The biggest objection to the law had to do with federalism. Opponents of the healthcare law said that the federal government did not have the power to pass such a sweeping piece of legislation mandating that everyone purchase health insurance. Those who supported the Affordable Care Act said that there were two places in the Constitution that expressly allowed the federal government such power: the Commerce Clause and the power to tax, both in Article One, section 8.
The Supreme Court Justices had to decide whether the federal government had the power to pass the health care law under one or both sections of the Constitution. Only a majority of justices have to agree in order for the law to stand. When the opinion was handed down, the justices took up the Commerce Clause argument first. Five justices agreed that the Commerce Clause did not support such a wide ranging move by the federal government (Roberts, Kenned, Alito, Scalia, Thomas). People in the courtroom used their phones to text to CNN and Fox News that the health care act had not been sustained under the Commerce Clause. The texting was precipitous and the news programs that reported the failure of the health care act suffered embarrassment for their premature reporting. Immediately after stating that the Commerce Clause did not sustain the Affordable Care Act, Chief Justice Reports reported that five justices did agree that the mandate portion of the Act could be considered to be a tax (Roberts, Ginsburg, Breyer, Sotomayor, Kagan). Because Article One of the Constitution clearly gives Congress the power to tax, the health care law mandate was constitutional.
Four of the justices (Kennedy, Alito, Scalia and Thomas) argued that the Affordable Care Act was unconstitutional under both the Commerce Clause and the power to tax. Their opinion, written as a dissent, does not matter for this case but dissents are often used to predict how justices will view similar matters in the future.
In addition to the federalism issue, the justices also decided whether the Medicaid portion of the health care law was constitutional. Under Article One, the federal government may join with state governments in spending programs to provide for the “general Welfare of the United States.” But, legitimacy of these programs depends on whether or not a State knowingly and voluntarily accepts any requirements of the program. Congress has long given states funds for their Medicaid programs. The Affordable Care Act said that if states did not comply with the expanded Medicaid coverage, all of their Medicaid funding would disappear. Seven justices said that this threat was unconstitutional because states that already had developed Medicaid programs relied on an already established funding agreement with the federal government and had not knowingly or voluntarily accepted this new provision that could gut their entire Medicaid budget. These justices included the four conservative justices, Chief Justice Roberts, and Justices Breyer and Kagan.
So, what now? Where do we stand? Because the Supreme Court has decided only that the law is constitutional, there is still much work to be done. Congress can amend the law or it can repeal the law, and we expect to see discussion about these possibilities over the course of the next several years. Christians interested in these matters have to keep a number of things in mind.
First, we need to think about our responsibility toward the poor and the sick. The United States is one of only a few developed countries in the world that, until the Affordable Care Act, did not provide some basic form of health insurance to everyone. Whether or not we believe that a national program is the best solution we do have to consider our obligations to those among us who suffer.
Second, we have to ask ourselves whether a Biblical understanding of government has anything to say about how we structure government and whether Constitutionality really means anything to us. Federalism and separation of powers were instituted by the Framers of the Constitution in order to dilute power. James Madison, for example, argued that men are not angels and that concentrated power would lead to abuse. Some Christians argue that the structure of government does not matter and we must be concerned only with the end result of a particular policy. Other Christians say that policies are important but structure of government is also important. Madison’s view of human beings is compatible with a Biblical understanding of a fallen Creation. If human beings are prone to abuse power, then paying attention to governmental structures that dilute power can be one way of working toward justice in a fallen but redeemed world.