Daniel Epps: In Health Care Ruling, Roberts Steals a Move From John Marshall's Playbook





Daniel Epps is an associate at King & Spalding LLP in Washington, D.C. and a former law clerk to Justice Kennedy.

Earlier today, the Supreme Court, by a narrowly divided vote, upheld the individual mandate, a key component of President Obama's signature piece of legislation, the Patient Protection and Affordable Care Act....

The parallels [between ACA and Marbury v. Madison] are eerie. President Obama was ready for the Court to uphold the mandate -- in which case he would have trumpeted the decision as a vindication of the law and a rejection of Republican criticism that Democrats had overreached. And he similarly, was ready for the Court to strike down the mandate, or even the whole Act (apparently, he had three different speeches prepared for all the possibilities). He'll never read those speeches, but he almost certainly would have challenged the Court head-on and tried to make its conservative bent into a wedge issue in his campaign -- he has been quite willing to politicize the Court in the past. There was no prospect that Obama would have ignored the ruling -- as Jefferson might have ignored a mandamus writ -- but the ensuing political struggle could have damaged the Court's credibility. And it might very well have hurt Roberts's legacy in particular, given that there had been a focused attempt in the press to paint a narrative about him as the leader of a Court out to get Democrats and Obama.

So the president was ready for the Court to break right or break left. But instead, Chief Justice Roberts juked. He agreed with the challengers that the mandate couldn't be justified under the Commerce Clause or even the Necessary and Proper Clause -- thereby reinforcing the narrative that the Democratic Congress overreached in passing the bill. His opinion -- though not the result -- may provide much help in the future to judicial conservatives, as it suggests that, with the dissent, five justices are in favor of a more aggressive role for the Court in policing the bounds of the Commerce Clause (and the Spending Clause, which was at issue in the Medicaid legislation). And while Roberts ultimately voted to uphold the Act, he did so on a ground that, for Obama, plays terribly: that it's a tax.

Now, much as Jefferson was two centuries ago, Obama is boxed in. What is he to do? He can't criticize the Court for judicial activism, as it upheld the law (putting aside the way the Court limited the Medicaid provisions, which are not particularly salient to voters). The decision undercuts a potential theme of his campaign -- that a conservative Court is out of control. And yet Obama can't trumpet the decision either, since it states that Democrats overreached in trying to justify the law under the Commerce Clause. Worse yet, it calls the mandate something that Democrats didn't want it to be: a tax.

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