SCOTUSBlog Commentary: “Lose the battle, win the war?”

My contribution to the SCOTUSBlog post-decision symposium elaborates on some of the points I made in my early Bench Memos post on the decision. Here are some excerpts:

For those who opposed the individual mandate and hoped to see the entire Patient Protection and Affordable Care Act struck down, today’s Supreme Court decision is a disappointment. Yet for those who hoped the Court would reaffirm that the Constitution creates a federal government of limited and enumerated powers and that it is the responsibility of the Court to enforce such limits, there is much to like in today’s decision. While the Court upheld the PPACA, it reaffirmed the foundational principles of the nation’s constitutional structure and confirmed that the federalism decisions of the Rehnquist Court were not aberrations. In a very real sense, proponents of federalism may have lost the battle, but won the war. . . .

It would be tempting to read the Chief Justice’s discussions of the Commerce and Necessary and Proper Clauses as mere dicta. It would also be wrong, as these analyses form an essential predicate to his ultimate conclusion that the mandate could be upheld as a tax. As the entire Court accepts, the most natural reading of the minimum coverage provision is as an economic mandate adopted pursuant to the Commerce Clause. It is only after rejecting the possibility that the mandate could be justified in this manner that the Chief returns to the text to see if it is susceptible to an alternative construction. Thus, the only reason the Chief Justice even considers whether the mandate could be considered a tax, the statutory text notwithstanding, is because of his prior conclusion on the Commerce and Necessary and Proper Clauses. Thus this decision provides five firm votes for meaningful limits on the most expansive of Congress’ powers.

The Chief Justice’s opinion also confirms that he is a judicial minimalist – and more so than any other member of the Court. His decision to adopt a narrowed, if strained, interpretation of the minimum coverage opinion so as to preserve the statute’s constitutionality is of a piece with what he has done before, in cases like NAMUDNO v. Holder, and FEC v. Wisconsin Right to Life (and, according to Jeffrey Toobin’s reporting, was prepared to do in Citizens United). When possible, the Chief Justice prefers to decide less, leave precedents undisturbed and, as in this case, avoid overturning a federal statute – even if it means stretching statutory text or adopting stingy interpretations of prior opinions. Whether or not one likes this approach to judicial decision-making, it is what we have come to expect. . . .

NFIB v. Sebelius does not end the legal wrangling over the PPACA. Rather this case is only the beginning. Barring action by Congress, the Court will see this statute again. Several additional PPACA lawsuits are already pending in federal court. These suits challenge everything from the structure of the Independent Payment Advisory Board to the mandate that employers provide contraception coverage as part of employees’ health insurance plans, and more are on the way.

The full symposium may be found here.