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August 2012 Brief: Volume 19, Number 24

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Health Care, the Supreme Court, and

the Future of Limited Government


by John Hendrickson



The United States Supreme Court declared that the Patient Protection and Affordable Care Act (ACA) is constitutional in a surprising five-to-four decision. Chief Justice John Roberts joined with the four liberal Justices on the Court, Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, in upholding most of the ACA. At the heart of the ACA is the individual mandate, which requires individuals to purchase health insurance or pay a penalty for not complying. President Barack Obama and other progressives argued that Congress has the authority to force people to buy health insurance under the Commerce Clause of the Constitution. Chief Justice John Roberts in his majority opinion did not agree that Congress has the power to enforce the mandate through the Commerce Clause, but he believed that the mandate is constitutional under the taxing authority. The Court’s decision over the ACA not only further elevates the importance of the upcoming presidential election, but also raises some important concerns over the future of constitutional limited government.


The Court’s decision in the ACA also declared the Medicaid provision unconstitutional, which is a victory for the states that challenged the law. The Supreme Court argued that “the federal government could not expel states from Medicaid if they refused to go along with the expanded eligibility for the federal-state health program that is part of the health-care law.”[1] The concern for many states is the growing cost of the Medicaid entitlement program. Several state Governors have also stated that they will not implement provisions of the ACA.[2]


The most controversial aspect of the decision centers on Chief Justice John Robert’s argument that the individual mandate is protected by Congress’s taxing power rather than as a form of regulating commerce, both of which are found in Article 1, Section 8 of the Constitution. Although President Obama stated that the penalty under the mandate was not a tax, the Court argued that the mandate “is constitutional only because Congress could have identified its enforcement penalty as a tax.”[3] Chief Justice Roberts agreed with the four dissenting conservative Justices, Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito, that the mandate is not constitutional under the Commerce clause.


As Randy Barnett, a constitutional scholar and Senior Fellow at Cato Institute stated: “By rewriting the law to make it a ‘tax,’ however, the Court has now thrown Obamacare into the political process. The people will decide at the ballot box whether this so-called ‘tax’ will stand.”[4] The Court rejecting the argument that the mandate is constitutional under the Commerce Clause is seen as a victory by some conservatives because it will establish a precedent in favor of constitutional limited government.


By rejecting the Commerce Clause rationale, Thursday’s [June 28, 2012] decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, ‘the enumeration presupposes something not enumerated,’ wrote columnist George F. Will.[5]


Even with this optimism, it must be taken into consideration that the ACA in its entirety is unconstitutional. The Constitution granted limited and specific powers to the federal government and the individual mandate was not appropriate within either the Commerce Clause or the power to tax as found in Article 1, Section 8. Justice Kennedy, who authored the dissenting opinion, wrote: “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts to a vast judicial overreaching.”[6] The dissenting Justices argued that “the values that should have determined the course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers.”[7] As Justice Thomas clearly noted, “the individual mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.”[8]


John Yoo, a constitutional law professor, argues that Chief Justice Robert’s “opinion provides a constitutional roadmap for architects of the next great expansion of the welfare state.”[9] As Yoo wrote:


Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.[10]


Champions of limited government may have a victory in the Court agreeing with the limitations of the Commerce Clause, but Professor Yoo’s point is very clear that this decision greatly expands Congress’s taxing authority. Richard Epstein, a constitutional law professor and Senior Fellow at the Hoover Institution, wrote: “Chief Justice Roberts has ignored this fundamental principle: if direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold).”[11] The ACA should have been declared unconstitutional and it is the responsibility of the Supreme Court to protect and defend the Constitution by striking down unconstitutional laws. It is clear that the ACA violated the Constitution and remains a threat to constitutional limited government as designed by the Founding Fathers.


[1] Jess Bravin and Louise Radnofsky, “Court backs Obama on health law: In surprise ruling, Chief Justice sides with liberals to uphold insurance mandate for all Americans; GOP vows repeal,” The Wall Street Journal, June 29, 2012, p. A1.
[2] Michael Tanner, “The states resist Obamacare,” National Review Online, July 4, 2012, <> accessed on July 4, 2012.
[3] George F. Will, “Conservatives’ consolation prize,” The Washington Post, June 28, 2012, <> accessed on June 28, 2012.
[4] Randy Barnett, “Health care ruling: A strange constitutional win,”, June 28, 2012, <> accessed on July 3, 2012.
[5] Will.
[6] National Federation of Independent Business, Et Al., v. Kathleen Sebelius, dissenting opinion of Justice, Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, <> accessed on July 5, 2012, p.64.
[7] Ibid.
[8] National Federation of Independent Business, Et Al., v. Kathleen Sebelius, Justice Thomas dissenting, p. 1.
[9] John Yoo, “Chief Justice Roberts and his apologists,” The Wall Street Journal, June 29, 2012,
<> accessed on July 2, 2012.
[10] Ibid.
[11] Richard Epstein, “A Confused Opinion,” The New York Times, June 28, 2012, <> accessed on July 2, 2012.


John Hendrickson is a Research Analyst with Public Interest Institute, Mount Pleasant, Iowa. Contact him at


Permission to reprint or copy in whole or part is granted, provided a version of this credit line is used:"Reprinted by permission from INSTITUTE BRIEF, a publication of Public Interest Institute." The views expressed in this publication are those of the author and not necessarily those of Public Interest Institute. They are brought to you in the interest of a better-informed citizenry.



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