More Law than Politics: The Chief, the “Mandate,” Legality, and Statesmanship

This chapter in a forthcoming book on NFIB v. Sebelius asks whether the various parts of Chief Justice Roberts’s opinion on the minimum coverage provision are legally justifiable. I focus on what Roberts decided, not why he decided it that way. Law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to apply when federal laws are challenged on federalism grounds. Robert’s opinion was unpersuasive in concluding that the minimum coverage provision was beyond the scope of the Commerce and Necessary and Proper Clauses. Roberts failed to apply the modern doctrine of “constitutional avoidance,” thereby needlessly deciding these questions. What is more, he decided them wrongly. Fortunately, the doctrinal consequences of this portion of his opinion will likely (although by no means certainly) prove insignificant. In the final part of this chapter, I move from the internal perspective of the faithful legal practitioner to the external perspective of the system analyst. I ask what Roberts may have accomplished in responding to NFIB as he did. By prohibiting Congress from requiring Americans to purchase products against their will, Roberts partially expressed new popular and professional constitutional arguments—arguments developed by those who had mobilized against the prevailing view among legal experts that the minimum coverage provision is constitutional. By upholding the minimum coverage provision under the Taxing Clause, he validated the values of the ACA’s supporters and respected the post-New Deal convention that the Court should uphold momentous social welfare legislation. By partially validating the sincerely held moral beliefs of both sides, Roberts may have succeeded in sustaining some measure of social solidarity amidst intense disagreement over health care reform, thereby enhancing the public legitimacy of constitutional law. Roberts may or may not have intended to practice judicial statesmanship, and his statesmanship may not be enough to justify his contradictions of sound legal reasoning. But statesmanship probably provides the most persuasive way to try to justify his analyses of the Commerce and Necessary and Proper Clauses. Such a defense, however, would require the application of criteria that are difficult to justify as legal from the internal point of view