By James Skyles | Special to Watchdog.org

The most important feature in the Supreme Court’s opinion in National Federation of Independent Businesses v. Sebelius is not that the law was upheld under the tax-and-spending provisions under the Constitution. It is that the court has significantly limited the power of the federal government.

James Skyles

First, the court stated specifically that the Commerce Clause cannot be used to force individuals to make purchases in the stream of commerce. More importantly, the Supreme Court has limited the power of the federal government to bully the states into enacting state laws that bend to federal desires.

From a constitutional law perspective, the Commerce Clause is the bane of every law student’s existence. It has been used to expand the powers of government, for good and for evil. In Civil Rights law it was used to end laws discriminating against African Americans who wanted to eat at lunch counters. During the Great Depression, it was (and is still being) used to regulate crop production, even when the crops are for personal use. It is now the reason Amazon taxes are probably unconstitutional.

In general the Commerce Clause has been used to increase federal government power, and decrease the ability of the states to exercise powers left to them in the Constitution. By stating that the Commerce Clause cannot be used to force individuals to purchase health insurance, the Supreme Court has limited the power of the federal government under the Commerce Clause.

The Necessary and Proper Clause, likewise, has been a source of almost limitless power of the federal government. This, too, the court has limited in stating that the federal government cannot use this power as a means to force individuals to purchase health insurance.

The only measure that survives is the Tax and Spending Clause, which the Constitution sets forth explicitly: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States” (U.S. Const. art. 1, § 8, cl. 1.). By doing so, the provision that forces individuals to pay a fine if they do not purchase health insurance is now qualified as a “tax.” As a matter of practicality, when an individual refuses to purchase insurance, that act triggers an extra payment to the IRS on their tax return. So the court concluded under the tax and spending clause, such a payment would qualify as a tax.

The other significant portion of the Affordable Care Act dealt with state-mandated Medicare payments. This, in my opinion, is the really big one. As we know from history, the federal government from time to time will threaten to withhold funding to the states to finance federally mandated programs if those states do not comply with some aspect of federal law. The most common example was when the federal government threatened to withhold federal highway funds to the states if the states did not raise their drinking age to 21.

In this case, the federal government threatened to withhold all Medicaid funding if states failed to raise their eligibility to everyone whose income was within 133 percent of federal poverty guidelines.

The court said — emphatically — that the federal government could not do that, describing the matter not as encouragement but as a “gun to the head” of the states. This again, limits the ability of the federal government to coerce the states into acting at their behest.

Let’s look at the tally:

Commerce clause can enforce individual mandate:

No: Roberts, Scalia, Alito, Thomas, Kennedy

Yes: Ginsburg, Kagan, Sotomayor, Breyer

Necessary and Proper clause can enforce individual mandate:

No: Roberts, Scalia, Alito, Thomas, Kennedy

Yes: Ginsburg, Kagan, Sotomayor, Breyer

Tax and Spending clause can enforce individual mandate:

No: Scalia, Alito, Thomas, Kennedy


Yes: Roberts Ginsburg, Kagan, Sotomayor, Breyer

Federal Government can coerce states to change Medicaid laws:

No: Roberts, Scalia, Alito, Thomas, Kennedy, Kagan, Breyer

Yes: Ginsburg, Sotomayor

So, in other words, this court limited the power of the federal government in three key ways, while still receiving the adulation of a president who’s mission it has been to increase the power of the federal government.

It may seem genius, but I don’t think that is how Chief Justice John Roberts intended for this to happen. It’s more likely he was aiming for a 6-3 vote to avoid a split 5-4 opinion, and it backfired. Here’s the logic: When the Supreme Court goes into conference after oral arguments, the chief justice is always first to speak and first to vote. It seems possible Roberts was trying to do both in a way to entice Justice Anthony Kennedy to side with him and make it an all-around 6-3 decision (at least on the tax-and-spend clause) to make the court appear less partisan. It didn’t work because Justice Kennedy decided to support the more conservative bloc.

The chief justice is an intelligent man who I agree with philosophically on the nature of the law — and perhaps most significantly on the fact that it is not up to the courts to determine whether a law is wise; that’s the purview of the congress and the people. It’s the court’s responsibility to determine, more narrowly, whether the laws are constitutional.

As Robert Bolt’s character Thomas More says in A Man for All Seasons, “Men must rule themselves by their wits, this court must rule according to the law.”

In this, Roberts is the least activist, and least partisan member of the court. He approaches the law, not with a result in mind, but with a strong mind and strong legal reasoning. He has here, as he has in the past, left it to congress to determine the laws by which we the people will be governed. We now have a better means to predict how the court will rule in future occasions.

James Skyles is owner and principal attorney of Skyles Law Group, LLC, and general counsel for the Franklin Center for Government and Public Integrity.