Did You Evah?

So, in today's decision in National Federation of Business v. Sebelius, the Supreme Court managed to surprise most Court watchers. The Court upheld the Affordable Care Act 5-4, with Chief Justice John Roberts providing the fifth vote.

Go figure.

There actually was no single rationale on the part of the majority; Justices Ginsburg, Breyer, Kagan and Sotomayor found that the ACA was a valid exercise of congressional authority under the Commerce Clause, pretty much for the reasons I have previously discussed. Justices Kennedy, Scalia, Thomas and Alito strongly disagreed, essentially opting to overturn the New Deal.

Justice Roberts? Well, on this point he voted with the conservatives, sort of. He wrote that

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the framers, who were practical statesmen, not metaphysical philosophers.

This reading takes a rather perverse reading of Wickard v. Filburn, which explicitly found that

It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.

So, Bad day at Black Rock, right?

Well, in the sense that there is a nascent majority--the dissenters did not join the section of Justice Roberts' opinion effectively limiting Wickard to its facts, so I wouldn't go so far as to say there's a holding, yet--ready to draw a bright-line distinction between activity (which can be regulated) and inactivity (which cannot be), yes. Bad news, indeed for congressional power--albeit not the worst, as this sort of bright line could be legislated around, unlike some other formulations of the scope of the Clause the Court has adopted in the past.

But not bad news for the ACA. Because the taxing power argument made by the Department of Justice, and especially the oft-derided Solicitor General Donald Verrilli, was adopted by Chief Justice Roberts, and by the 4 more liberal members of the Court (sorry, folks; I met Brennan; these four ain't liberal). Game, set, and match.

Well, not entirely, the ability of the federal government to impose conditions on receipt of other funds to incentivize states to participate (here Medicaid funds which would be reduced to states declining to participate in the Medicaid expansion portion of the Act) has been torpedoed. Whether this becomes a principle of general applicability remains to be seen, but I should think it will.

Of course, I didn't get this constellation of facts right, so, what do I know?

Still, imagine the chaos in Washington society (assuming, contra Sally Quinn, that such a thing yet exists) at the spectacle of "swing vote" Kennedy moving hard and fast to the right, while Roberts saves President Obama's signature legislative accomplishment.

Well, did you ev-ah?