(Im)Proper Constitutionalism: Roberts' Revenge?

Now that the original frenzy over the ACA ruling has died done (a little), folks are starting to dig a little deeper into the opinions (particularly Roberts') to figure out what it means for the next case (incidentally, you can read the opinions here). Chief Justice Roberts' formulation is that the individual mandate does not lie within Congress' commerce clause power (nor the necessary and proper clause), but functions effectively as a tax and thus is part of Congress' taxing power. Now that I've quickly read over the commerce/N&P parts of the opinions (well, Roberts, Ginsburg, and the joint dissent), I have a few thoughts on them as well.

First thing is first -- I'm not sure I've ever seen as vicious a spanking as Justice Ginsburg delivers to Chief Justice Roberts on the commerce clause question. It is an utter smackdown of epic proportions. She clearly demonstrates that, under existing precedent, the ACA should have been by all rights a slam dunk, and that the parade of horribles Roberts and others have trotted out are more or less fanciful. So you go Justice Ginsburg. Keep on keepin' on.

Some folks are speculating that Chief Justice Roberts is pulling a Marbury -- issuing an opinion that on face is a victory for the President while actually sharply moving doctrine in a new direction undesired by the Chief Justice's political opponents (in Marbury, establishing judicial review, here, sharply circumscribing the Commerce Clause).

Chief Justice Roberts' attempt to atomize the discussion (is this individual person "in the health insurance market"?) is reminiscent of the style of commerce clause analysis the Court rejected in Jones & Laughlin. There, the Court rejected older decisions which looked individually at particular segments of the steel production process and asked if, individually, they were exhibiting a substantial effect on interstate commerce. The Court instead said we should look at the "steel industry" as a whole (which clearly does significantly impact ISC), and then Congress can issue regulations of the steel industry as part of regulating ISC. Similarly, the "health insurance market" is clearly a huge part of interstate commerce, so the question is whether regulating persons who do not possess health insurance substantially effects that market -- which of course it does (Justice Ginsburg's arguments about these persons "proximity" to the market were particularly on target).

But the part of the opinion that is more eyebrow raising to me is not the Commerce Clause analysis, but rather the decision to give the "proper" in "necessary and proper" independent weight. Given McCulloch (and Raich), that the individual mandate satisfies the necessary and proper clause would seem to be obvious -- it is an essential part of Congress' attempts to regulate the health insurance market as a whole. The rhetoric in McCulloch focused particularly on the word "necessary" -- to wit, does it mean "absolutely indispensable", or just convenient or useful? The Court found it meant the latter, reasoning that an alternate interpretation would render the Courts an effective super-legislature judging for themselves what was the single best way of regulating health care policy (this did not stop the joint dissent from explicitly doing just that, saying that the individual mandate was not necessary because the dissent could conceive of alternative health care regulations). This means, as Chief Justice Roberts acknowledges, that courts are very deferential about what legislative policies are "necessary".

Still, with "necessary" seemingly a bust, what about "proper"? It was the claim that the individual mandate was not a "proper" way of exercising the commerce clause authority that was Chief Justice Roberts' ultimate hinge. Here, Chief Justice Roberts accords no such deference, and that's especially worrisome given that the only constraining text he's using is the word "proper". As much as we might worry about courts imposing their own policy preferences when they utilize relatively open-ended language like "due process of law" or "cruel and unusual punishment", that risk has to be tripled when the alleged constitutional infirmity is that the law isn't "proper". I don't even know what that could conceivably mean other than raw imposition of judicial preference.

And the Chief Justice's opinion hardly inspires confidence that "proper" will mean anything more than "personally distasteful". What makes a law not "proper"? All Chief Justice Roberts can give us is that the legislation isn't "proper" where it would "undermine the structure of government established by the Constitution" or is "not consist[ent] with the letter and spirit of the constitution." There is almost no constraining bite to that "doctrine" at all -- it is an open invitation to simply strike down whatever it is a given Justice finds distasteful. Which is more or less how it was used here: The individual mandate is not "proper" because ... mandates, ew, scary. There just isn't a workable argument in there -- particularly when, as Justice Ginsburg (again!) notes, it is far from clear that the mechanism of a penalty payable as a tax is more far-reaching than Chief Justice Roberts' own example of admittedly "proper" congressional exercises (such as, say, keeping someone in jail). Nor is it clear why, if the form of a mandate is so repugnant to the constitutional order, it becomes okay when it is viewed as a tax regulation rather than a commerce regulation. The answer is that programs like this aren't actually that scary, but using constitutional language as vague as "is it proper" is an invitation to disaster.

Now, on the "proper" end of things, it is possible that this is meant to be a ticket good for this ride only -- that the Court will not in fact start using questions of "is the law proper" to strike down legislation left and right (well, most likely left). But maybe not -- if it was meant to be just a tool for this case, Roberts would have joined his conservative colleagues and struck the thing down. If we do see a revitalization of Lochner-era due process jurisprudence under the new guise of "proper", that would be nothing short of a catastrophe.