The result in today’s ruling, upholding the President’s landmark health care reform, is welcome. But the opinion of the Chief Justice gives no cause for celebration.
Chief Justice Roberts reached out broadly to impose unprecedented new restrictions on the powers of Congress in its ability to address important national questions of social welfare.
A restrained jurist seeks to avoid speaking unnecessarily to broad constitutional questions. The Chief exhibited no such restraint.
In the portions of his opinion that are joined in substance by the four dissenters, the Chief has restricted the Necessary and Proper Clause, claiming for the Court the power to decide whether a law that is concededly necessary for carrying out an enumerated power of Congress is nonetheless an “improper” method for doing so, and he has imposed an “activity / inactivity” test on regulations under the Commerce Clause that is analytically and practically unsustainable.
The lasting impact of these portions of the Court’s ruling will take years to assess. Because the majority upheld the challenged portions of the Affordable Care Act under the taxation power, there was no need to hold forth on the Commerce and Necessary and Proper Clauses, a fact that may diminish the significance of those portions of the opinion going forward. Nonetheless, their disruptive potential is extraordinary.