With the landmark Supreme Court ruling on Thursday, conservatives and libertarians lost their legal battle to overturn the Obama administration’s signature health care legislation. But they may have won a bigger war.

Chief Justice John G. Roberts Jr. ruled that the health care legislation passed constitutional muster, but only under Congress’s broad power to tax. He rejected the widely held expansive view of the commerce clause of the United States Constitution, ruling that it doesn’t give Congress the power to make people buy health insurance — or, for that matter, healthy green vegetables like broccoli.
“Under the government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables,” the chief justice wrote. “That is not the country the framers of our Constitution envisioned.”
Libertarians declared victory. “We finally won a three-decades-long battle over the commerce clause,” John Eastman, a conservative constitutional scholar and a professor at Chapman University, told me hours after the court’s decision.
This might seem a paradox, given that the court upheld the legislation. But the decision may ultimately prove a Pyrrhic victory for supporters of expansive Congressional power. The opinion reads like a hymn to the ideal of limited government. And by embracing the broccoli argument, it sharply limits the commerce clause — until now the source of ever-expanding legislative power since Chief Justice John Marshall wrote in 1824 that Congressional power to regulate commerce “may be exercised to its utmost extent.”
Despite Justice Marshall’s sweeping language, much of the expansion of Congressional power under the commerce clause came over a century later, in a series of court challenges to New Deal legislation. Invoking the commerce clause, the court upheld the Fair Labor Standards Act, even though it regulated companies whose business was entirely local, and it upheld the regulation of milk prices even for dairies that never sold their products across state lines. In what Chief Justice Roberts cited this week as “perhaps the most far-reaching example of commerce clause authority over intrastate activity,” the court in 1942 upheld restricting a farmer’s right to grow wheat for his own consumption. These cases have long rankled many conservative jurists.
In these and even more recent extensions of commerce clause authority, including Congress’s ability to ban home grown marijuana, the court focused on what constitutes interstate commerce. In the health care case, all the justices acknowledged that health care is a huge industry that cuts across state lines, and easily passed that test. But the conservative justices, joined by the chief justice, focused on “activity” as a factor limiting the commerce clause, ruling that commerce requires some activity, and not buying health insurance is “inactivity.” As Justice Roberts put it, the wheat farmer “was at least actively engaged in the production of wheat, and the government could regulate that activity because of its effect on commerce. The government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the commerce clause whenever enough of them are not doing something the government would have them do.” This, the court ruled, was unconstitutional.
“The commerce clause is not a general license to regulate an individual from cradle to grave,” Chief Justice Roberts wrote. Libertarians and conservatives have been seeking such a declaration since the New Deal.
The four dissenting justices agreed with Chief Justice Roberts’s limits on the commerce clause, giving the interpretation a 5-to-4 majority as well as the weight of precedent. And the four liberal justices who concurred in the result vehemently disagreed with the reasoning. Justice Ruth Bader Ginsburg spent much of her 61-page concurring opinion rebutting the broccoli argument, which she referred to as “the broccoli horrible.”
“When contemplated in its extreme, almost any power looks dangerous,” she wrote. “The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish and dairy goods, effectively compelling Americans to eat only vegetables. Yet no one would offer the ‘hypothetical and unreal possibilit[y],’ of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods.”
She also argued that the line between activity and inactivity may be difficult, if not impossible, to discern. To underscore the point, she quoted Judge Frank Easterbrook, chief judge for the United States Court of Appeals for the Seventh Circuit in Chicago and a prominent conservative jurist: “It is possible to restate most actions as corresponding inactions with the same effect.”
The significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on vacation.
“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence. It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.”
Professor Fried, a solicitor general under President Ronald Reagan, is viewed as a conservative and no fan of the heath care law, but nonetheless has consistently argued that the law is constitutional.
While praising the outcome, Professor Fried’s more liberal Harvard colleague Laurence H. Tribe said: “There may be a dark gray lining: it is the court’s 5 to 4 narrowing of the federal commerce power. Ironically, that narrowing might be the longest-lasting doctrinal legacy” of the ruling.
And while deeply disappointed by the outcome in the health care case, the libertarian lawyer David B. Rivkin Jr., a partner in the Washington office of Baker Hostetler, called the court’s interpretation of the commerce clause “the ultimate silver lining.” The opinion, he said, “reaffirms with enormous vigor the fundamental limits to the government’s power. The administration sailed under the flag of the commerce clause and it was decisively rebuked. No one will try to do this type of mandate again.”
Mr. Rivkin argued the case that reached the Supreme Court before Judge Roger Vinson of the Federal District Court in Pensacola, Fla., who embraced the broccoli argument and declared the statute unconstitutional. Portions of Chief Justice Roberts’s opinion addressing the scope of the commerce clause — as well as the dissenting opinion — read as though they could have been lifted from Mr. Rivkin’s many briefs and op-ed articles. “We won on the principle,” Mr. Rivkin said.
Which made it all the more astonishing, especially to the dissenting conservative justices, was that the court nonetheless upheld the statute as a tax. As Chief Justice Roberts explained it, “It makes going without insurance just another thing the government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”
Even here, a libertarian streak runs through the argument. Chief Justice Roberts makes clear that the health care act survived because the “tax” for not buying health insurance is sufficiently modest that individuals retain the freedom to opt out of the mandate by simply paying it.
As he wrote, “Taxes that seek to influence conduct are nothing new,” and he cited cigarettes as a prominent example. Congress doesn’t want Americans to smoke, so it imposes a tax. But the tax is not so high as to make it financially prohibitive for people to smoke; it’s not, say, $1,000 a pack. That would most likely be deemed a penalty or fine.
The Yale constitutional law professor Akhil Reed Amar has long argued that the health care act could be upheld as a tax, whether or not the statute actually used the “T-word,” as he put it. Still, he told me that he was troubled by the court’s restriction of the commerce clause and the triumph of the broccoli argument.
“There were five votes upholding the commerce clause interpretation, which is unfortunate,” he said. “This is very significant.” Congress now can’t accomplish anything it might have enacted under the commerce clause by simply calling it a tax. “There are limits to the tax power. It has its own internal limits and logic,” he said.
Where the line should be drawn in future legislation between a “tax” and a “penalty” is likely to be the subject of intense argument and continuing litigation. “We need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it,” Chief Justice Roberts wrote, all but guaranteeing a flood of new litigation.
Another aspect of the opinion with potentially far-reaching implications is the notion that Congress can’t regulate “inactivity” under the commerce clause.
“This opinion reinvigorates a stricter understanding of all the powers of government,” Professor Amar said. “There’s a renewed interest in limits to federal power. The language about inactivity suggests that any laws that purport to order conduct, including existing laws, have the potential to be challenged. This could become a powerful tool to achieve a more limited federal government.” He cited the plethora of environmental regulations that might now be challenged by businesses. So can Congress require Americans to buy broccoli?
Under the commerce clause, the answer is now clearly no.
Could Congress impose a tax on people who fail to buy broccoli, effectively accomplishing the same goal?
Under the logic of the decision, perhaps. But with a commerce clause victory in hand, the newly emboldened libertarians are already shifting their sights to Congress’s broad taxing and spending powers. “It’s the next dragon we have to slay,” Professor Eastman told me.