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HEALTH CARE: LIBERTY ON THE LINE

In April 2013, Barack Obama declared broccoli his “favorite food.”1 It was a bold choice. By selecting broccoli, he directly repudiated the official White House policy established by George H. W. Bush in 1990: “I do not like broccoli and I haven’t liked it since I was a little kid and my mother made me eat it. I’m the President of the United States and I’m not going to eat any more broccoli.”2 Obama’s announcement also signaled a touching act of forgiveness for a maligned vegetable. Not since George W. Bush choked on a pretzel in 2002 had a food come closer to destroying a presidency.3 In conservative hands, this humble member of the cabbage family nearly hobbled Obama’s signature domestic achievement: national health care reform, as embodied in the Affordable Care Act (the ACA, a.k.a. Obamacare).

In their crusade against the law, which began its tortuous path through Congress in 2009, the ACA’s opponents rallied support by conjuring an improbable nightmare: Obama, barely masking a self-righteous smirk, ramming leafy greens down our national throat and insisting that it is all for our own good. If the government could make each of us buy what it deemed adequate health care, what couldn’t it make us do? Did the federal government’s power to issue commands have no constitutional limit? The prospect of mandatory broccoli familiarized these fears. It sparked frustrated memories of being told to “eat your veggies” and of parents insisting “we know what’s best.”

The image of a force-fed vegetable soon assumed a life of its own. Pollsters asked Americans about hypothetical mandates to purchase broccoli.4 Senator Tom Coburn asked Elena Kagan during her confirmation hearing in 2010 about a law requiring Americans to eat three fruits and three vegetables every day. (She politely replied, “Sounds like a dumb law.”)5 The New Yorker published a cartoon in which a precocious child sits with his arms crossed and declares, “I say it’s government-mandated broccoli, and I say the hell with it.”6 Broccoli was everywhere—even the hallowed halls of the Court, where it would be mentioned twelve times in written opinions assessing the ACA. Justice Ginsburg, the ACA’s most eloquent champion when the law came before the Court, scornfully derided this argument as “the broccoli horrible.”

The legal challenge to the ACA was no standard “slippery slope” argument. It did not warn that the principles underlying the ACA, taken to a logical conclusion, might someday lead to trouble. The ACA was trouble. Its opponents argued that it was the bottom of the slope, an evil of constitutional dimension. Now that we had fallen so far, nothing stood between vulnerable citizens and federal broccoli mandates. By 2012, the law’s critics turned their full attention to the Court. Congress had erred by passing the ACA, Obama by signing it, and now only the justices could save us from this unprecedented bout of political insanity.

But how? The Court is not a superlegislature. Its reasoning and the authorities on which it can legitimately rely are unique. Although it seemed clear that at least five justices would have voted against the ACA if they had been senators, its adversaries needed a constitutional argument.

This is when things got interesting. Challenges to the ACA channeled and magnified demands that the Court restore the Constitution to a role it hadn’t played in more than seventy-five years: the source of robust, judicially enforced limits on federal power to regulate the economy. That call to battle echoed amid Tea Party activism, Occupy Wall Street protests, and election year politics.

Legal arguments against the ACA that initially struck many experts as far-fetched benefited from fierce partisan debate over the federal government’s role in stabilizing a post-recession economy. Controversy over creating jobs, protecting consumers, overseeing banks, and honoring entitlements while addressing public debts soured many on federal regulation. Reacting with alarm to Obama’s pursuit of progressive economic policies, a coalition of conservatives and libertarians objected in the language of constitutional law.7

Their attacks captured creeping anxiety about the use of federal power, by celebrating the importance of “structural limits” on the powers Congress may wield. Structural limits result from how the Constitution maps out the government and constrains its authority—the separation of powers and federalism, for example. Respect for constitutional limits on federal power, the law’s challengers argued, is vital to the preservation of American freedom. The vision behind the attack on the ACA was thus part of a broader legal and political assault on federal power to regulate the economy, the judicial front in a wider war over national policies and values.

Although the Court tried a century ago to aggressively police the boundaries of federal power and economic liberty, it largely abandoned that effort in the late 1930s. Since then, it has mostly left these matters to the political safeguards of democracy. In the course of reviewing the ACA, though, a majority of the Roberts Court signaled its openness to a project of reviving and enforcing constitutional limits on federal power. This was striking because the Court has refused every request to invalidate major social legislation since Franklin Delano Roosevelt’s New Deal. If pursued, that undertaking could draw the Court into a more active, if haphazard, role in reviewing policies that affect our national life. It’s thus remarkable that the ACA survived only by a single vote.

That vote, cast by Chief Justice Roberts, forestalled a momentous clash between the Court and the political branches. Yet a close reading of his opinion strongly suggests that the Chief shares his right-leaning colleagues’ desire to limit the scope of federal power—and to craft new constitutional law in order to do so. The ACA survived, but the way it survived left no doubt that five justices on the Roberts Court are sympathetic to those who survey the vast scope of federal regulation and declare, “Enough!”

National Federation of Independent Business v. Sebelius, a.k.a. the Health Care Case, ranks among the most anticipated and controversial decisions in American history.8 It is also one of the most misunderstood. Too many observers treat the Court’s ruling as if it erupted out of nowhere and tells us little about the future of the Roberts Court. True, the story of the Health Care Case is fascinating in its own right. But the ACA ruling should not be seen as a one-off event. Nor should so much attention be consumed by attempts to divine the Chief’s personal and political motives for upholding the law.9 The decision’s value as a sign of things to come is far more important.

A panoramic view of the Health Care Case reveals that the Roberts Court is poised at the intersection of centuries-old debates over American freedom and its relation to American federalism. As the Court stands at that crossroads, its opinions upholding the ACA reveal its uncertainty about how best to move ahead. Although the Court (barely) left Obama’s most important law standing, it sent an unmistakable message: change looms on the horizon.

*   *   *

By the time its opponents asked the Court to serve as executioner, the ACA had already come back from the dead once. And in the century before the Court ruled, the liberal dream of providing affordable, universal health coverage had survived countless deaths.10

That story stretches back to 1912. During his unsuccessful run for a third term as president, Teddy Roosevelt delivered a fiery speech on social policy to the Progressive Party convention. In words that resonated for decades, he argued that “the hazards of sickness, accident, invalidism, involuntary unemployment, and old age should be provided for through insurance.”11 Twenty years later, when FDR followed through on Teddy’s call, universal health care was left out of the legislation that established Social Security because of concerted political and professional opposition.12 Harry Truman championed a national health-insurance program, but the closest he came to success was watching Lyndon B. Johnson—in an act of tribute—sign Medicare into law at the Truman Presidential Library.13 In the 1970s, Richard Nixon and Senator Edward Kennedy tried to reach a compromise that would guarantee health coverage for every American, but the talks fizzled and were eventually overshadowed by Watergate.14 Two decades later, Bill Clinton’s attempt to reform health care crashed and burned after Clinton suffered what he later called “a good shellacking” in the 1994 midterm elections.15

When Obama took up the torch, his push to create universal coverage was never supposed to hinge on a mandate that every individual obtain insurance. The individual mandate was originally a conservative idea, cooked up by right-wing policy wonks in the late 1980s as an alternative to a government-run health care system.16 During the 2008 Democratic primary, Obama had even criticized Hillary Clinton’s plan for including a coverage mandate.17 Soon after taking office, though, Obama changed his mind. He was persuaded by Democrats in Congress, the cold logic of budget projections, and evidence suggesting that a mandate could best achieve increased coverage and reduced cost.18

That switch in Obama’s position was just one of many twists and turns in the struggle to enact the ACA. The battle was epic in scope and ferocity. It consumed nearly two years of the federal government’s attention and led both sides to extreme measures. The drama reached a fever pitch in January 2010, when Republican Scott Brown was elected by Massachusetts voters to replace the late Senator Ted Kennedy, a liberal lion who had devoted his career to universal health care. Brown’s election deprived Democrats of the sixty votes in the Senate they would need to overcome an assured Republican filibuster. Many pundits issued yet another death certificate for health care reform.19

Obama and his Democratic allies, however, responded to this setback with steely resolve. After tense negotiations, the House agreed to pass the Senate’s bill. The Senate later used a special budgetary procedure that required only fifty-one votes to pass the changes House Democrats had demanded. Republicans cried foul, but the Democrats hadn’t violated any Senate rules. On March 23, 2010, Obama proudly affixed his signature to the ACA.20

The new law is nothing if not complex. It contains thousands of moving parts and touches nearly every aspect of the health care system. Many of its provisions are still being interpreted and implemented, a process that will continue for years to come and affect virtually every patient, doctor, hospital, and branch of government. As the difficulties that plagued the law’s rollout revealed, implementation will be a formidable challenge in its own right.

The legislation finally delivered to Obama’s desk, though, rested on three simple pillars. First, the ACA aimed to secure universal coverage. To achieve that goal, it required states to expand their Medicaid programs (mostly at federal expense); provided subsidies for middle-income Americans to buy insurance; created government-run “exchanges” on which people could shop for policies; and penalized large employers who failed to provide affordable insurance to their employees. Second, to promote affordability, the law restricted practices by health-insurance companies that had excluded millions of Americans from the market. Most important, the ACA’s “guaranteed issue” provision banned insurers from denying coverage to people with preexisting medical conditions, and its “community rating” rule prohibited insurers from charging those people higher premiums. Finally, the law mandated that people who could afford a qualified health-insurance plan on the private market buy one, unless they were otherwise covered by Medicaid, Medicare, or their employer. Failure to comply with this “individual mandate” would result in the imposition of a “shared responsibility payment,” adjusted by income and levied as part of the annual federal income tax.

The ACA included an individual mandate because its guaranteed issue and community ratings initiatives created a dire risk: if Americans did not have to pay higher costs even if they had preexisting conditions, and thus could wait to purchase health insurance until they were already sick, many might decide against coverage while healthy. This could be especially true of young people, who often view insurance as a burdensome cost and make relatively little use of it. The resulting insurance “death spiral” would be cataclysmic. Insurers rely on a large population of healthy people to fund the steep costs of sick plan members. If everyone in a plan were sick, premiums would skyrocket—forcing many Americans out of the market and compelling the government to pick up the ever-growing tab.21 Though in theory we could simply leave sick people to their own devices, America long ago rejected such a miserly view of its shared social responsibilities. The Emergency Medical Treatment and Active Labor Act, passed in 1986, made that rejection manifest by requiring hospital emergency rooms to treat anyone seeking medical help.

By mandating that virtually all Americans obtain coverage, the ACA sought to protect the safety net it created from potential ruin. In practice, the law essentially offered a choice: either pay for health insurance or pay a “shared responsibility” tax designed to compensate, in part, for the costs that the class of uninsured people inevitably impose on others, including taxpayers. After all, deciding to self-insure is risky. Everyone eventually uses health care, and the evidence shows that, as a group, those who self-insure often end up unable to pay for the cost of their care, forcing the rest of us to cover a big part of their bill. For example, Congress found that, in 2008, hospitals, physicians, and other professionals received no compensation for $43 billion worth of the $116 billion in care they administered to the uninsured. The resulting increase in health care costs, Congress discovered, was partly passed on through insurers and raised annual family premiums by an average of more than $1,000. In a sense, the coverage mandate was a conservative policy that forced Americans to take responsibility for the consequences of their choices.

The ACA’s opponents saw it differently. They saw an unwieldy and harmful law that would wreak havoc on a national scale. They saw an effort to manage the American economy with a form of discredited central planning. And the closer they looked, the more they saw a use of federal power with socialist or even tyrannical implications: a requirement that all Americans buy something on the private market. A libertarian drive to prevent government control over basic economic choices merged with a distinct fear of federal power to propel a ferocious legal assault.

Almost before the ink of Obama’s signature could dry, Florida’s attorney general filed suit in federal court. He challenged the mandate and the Medicaid expansion, but his broader aim was to see every page of the new law burned. Eventually, twenty-five other states joined Florida’s suit. Private plaintiffs filed their own cases. From the outset, it was obvious that only our highest court could settle this momentous conflict.

*   *   *

At about ten o’clock in the morning on June 28, 2012, Obama stepped out of the Oval Office and stood before a bank of four televisions in the adjoining vestibule.22 He knew the Court would rule on the ACA in just a few minutes. It was the last day of the Court’s term, and the justices were sure to release all their remaining opinions. Soon, he would learn if his law had survived.

Across town, Roberts gathered with his colleagues in the Court’s oak-paneled robing room to don his black, priestlike vestments. Following time-honored custom, each justice shook hands with every other justice—an affirmation of mutual purpose and respect that must have carried particular weight before the Court announced its bitterly divided opinion.23 A moment later, the Chief and his colleagues appeared in the great courtroom, sliding quickly through red velvet drapes and establishing themselves around the imposing curved bench. The justices were visibly exhausted. Each—except for Roberts—had suffered at least one bruising defeat in the Health Care Case. And even the Chief’s victory was bittersweet.

For a long moment, the nine justices looked out over the audience. The air grew thick with tension. The justices knew the result, but the rest of the world was still in the dark. Unlike most other Washington institutions, the Court maintains a strict “no snitches” policy—creating a rare cone of silence in a city of sieves. Its self-imposed secrecy largely survived even the pressure brought to bear in this historic case; only a few outsiders appear to have had any sense of the machinations within the Court.24 Bereft of smoke signals, the nation had endured a roller-coaster ride of shifting expectations.

In the legal challenge’s early days, nearly every scholar and politician who reviewed the case considered it frivolous.25 When asked about her constitutional authority in 2009, Speaker of the House Nancy Pelosi incredulously replied, “Are you serious?”26 Mere days before oral argument in March 2012, Linda Greenhouse, writing in the New York Times, reaffirmed this conventional wisdom: “The constitutional challenge to the law’s requirement for people to buy health insurance—specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause—is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.”27 Congress, she explained, enjoys broad power to regulate economic activity. And what could be more economic than the multibillion-dollar health care market? It seemed to her, and many others, like an open-and-shut case.

On March 27, 2012, everything changed. During one of the longest arguments in living memory, the five right-leaning justices unleashed a devastating barrage of questions upon the ACA’s defender, Solicitor General Don Verrilli. Decrying the ACA’s threat to personal freedom, they jabbed at every pressure point in Verrilli’s argument. Paul Clement, one of the leading oral advocates of his generation, assailed the law in a virtuoso performance that stoked the justices’ fear of tyranny. A majority of the Court clearly took the challenge very seriously. Halfway through the proceedings, Jeffrey Toobin of CNN raced from the Court to publicly prophesy the mandate’s demise.28

After argument, the nation eagerly awaited the Court’s decision. Rumors swirled of shifting votes and shady, behind-the-scenes efforts to sway the justices.29 Obama jousted with Mitt Romney over the ACA, and public opinion polarized around its legal merits. Republicans repeatedly called for bills to defund or repeal the law. The website Intrade even hosted bets on whether the mandate would survive. The morning of the decision, it posted odds in favor of invalidation ranging from 66.2 percent to 72.9 percent.30

As Intrade users placed their final bets and Obama waited anxiously in the White House, Roberts took his seat in the great courtroom.

At 10:07:39 on the morning of June 28, 2012, Fox and CNN broke the silence with headline news: the individual mandate had fallen. In the White House, Obama stared at the screen, undoubtedly dumbfounded. But before the news could sink in, White House Counsel Kathy Ruemmler appeared with a broad smile and a double thumbs-up. Confused, Obama glanced back at the screen. Ruemmler reassured him; she had seen a dispatch at 10:08:30 from Tom Goldstein and Amy Howe on SCOTUSblog, the first site to correctly report the ruling.31 The Court had issued a complicated opinion. Eager to break the news, several journalists had filed stories prematurely. In fact, the individual mandate—and thus most of the ACA—had survived.

But not all of it. Seven justices—the five conservatives, joined by Justices Breyer and Kagan—had struck down a central part of the ACA’s Medicaid expansion, which required states to cover everyone with incomes up to 33 percent above the poverty line. The ACA punished noncompliant states by stripping away all their existing Medicaid funding, which made up an important part of many state budgets. The Court held that this rule constituted impermissible coercion by the federal government, even though the Medicaid expansion was almost entirely federally funded. This part of the decision received relatively little attention at the time, but it eventually allowed roughly half the states to depart from the ACA’s Medicaid expansion. The resulting coverage gap remains a subject of intense political dispute in many states.32

When Roberts announced his ruling, though, the mandate’s bright future took center stage. Obama had just scored a decisive constitutional victory. As he absorbed the news, the president grabbed Ruemmler and enveloped her in a bear hug.

*   *   *

The day after he announced his ruling in the Health Care Case, Roberts prepared to vacation in Malta, a getaway that he cheerfully described as “an impregnable island fortress.”33 He added, “It seemed like a good idea.”

The Chief’s vote to uphold the ACA will go down as one of the most consequential acts of his tenure on the Court—and one of the most controversial. Hailed by some as King Solomon and denounced by others as Benedict Arnold, the Chief was deemed an idiot, a genius, a statesman, and a canny strategist.34 Liberals heralded a great triumph but worried that the opinion was a Trojan horse. In op-eds and interviews, they warned that it could provide legal firepower to conservatives in the future and confer undue credibility on Roberts as he pursued a radical right-wing agenda.35 Most libertarians and conservatives, meanwhile, bemoaned the ACA’s new lease on life, even as some proponents of the challenge discerned victories in the ashes of defeat.36

Of course, any considered assessment of the ruling must start with the opinion itself. The main legal issue in the Health Care Case was whether Congress exceeded its powers under the Constitution in enacting the mandate. It’s a fundamental principle of American constitutionalism that the federal government has limited powers. Congress does not enjoy a freestanding authority, often dubbed a “police power,” to legislate on any matter affecting public morals, safety, health, or welfare. Instead, it must always act pursuant to a grant of power set forth in the Constitution.

In defending the ACA, the Department of Justice invoked three great delegations of power in Article I of the Constitution as sources of authority to impose the mandate: Congress’s power to “regulate Commerce … among the several States,” its power to pass “all Laws … necessary and proper” to carrying into effect its other powers, and its power to tax and spend for the “general Welfare of the United States.” The law’s challengers pushed back, arguing that the power to regulate commerce doesn’t reach citizens who aren’t already participating in the relevant market—here, citizens who are “inactive” in the market for insurance. The mandate, they added, was not really a “tax.” In an avalanche of briefs, the government, the challengers, and other interested parties laid out intricate arguments about how the precedents and principles governing Congress’s power should apply to the ACA.

In a ruling aptly described by Stanford Law Professor Pam Karlan as the “most grudging opinion ever to uphold a major piece of legislation,” Roberts concluded that Congress lacks the power to impose true mandates.37 He then saved the ACA, however, by reasoning that the law could be read as not really imposing a mandate at all. This was a prospect that some observers thought the Chief had signaled on the first day of argument, though it had escaped most Court watchers.38 With four justices voting to uphold the mandate outright and four justices voting to strike it down, the Chief’s vote—which is rumored to have shifted after a post-argument conference—controlled the outcome.39

In his opinion, Roberts immediately distanced himself from the ACA’s alleged virtues: “We do not consider whether the Act embodies sound policy choices. That judgment is entrusted to the Nation’s elected leaders … [and] it is not our job to protect the people from the consequences of their political choices.” In style and substance, the Chief made clear his disdain for the law that he had stoically set about rescuing.

Roberts began his analysis by embracing wholesale one of the main critiques of the mandate: it regulated decisions not to buy health insurance. Roberts did not question precedents establishing that the Commerce Clause empowers Congress to regulate essentially all economic activity, but he argued that it did not encompass power over economic inactivity: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain of congressional authority.… That is not the country the Framers of our Constitution envisioned. Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.” Plainly offended by the ACA’s intrusion on liberty, Roberts ridiculed the law as an attempt to “regulate an individual from cradle to grave.”

Roberts also rejected arguments that the mandate could be saved by the Constitution’s “Necessary and Proper” Clause, a catchall provision authorizing Congress to “make all Laws which shall be necessary and proper for carrying into Execution” other constitutional powers. Invoking this clause, the government sought to justify the mandate as an indispensable means of ensuring that the ACA’s guaranteed issue and community ratings provisions did not cause an insurance death spiral.

The Chief conceded that the mandate would achieve that goal and, thus, was “necessary,” but he held that it was not a “proper” means of doing so. The mandate, he reasoned, represented a kind of bootstrapping by Congress, which had itself created the problem that the mandate was supposedly necessary to solve. Further, he warned that a mandate was a “great substantive and independent power” in its own right.40 Holding that federal authority to pass the rest of the ACA impliedly conferred power to impose something as huge as a mandate would be like letting the tail wag the dog. It just wouldn’t do.

This left only the taxing power. Invoking the long-recognized judicial duty to save a law if any fair means of doing so can be found, Roberts held that the “mandate” need not be understood as a mandate at all. Rather, it could reasonably be read as requiring only that certain people pay a tax if they decline to buy insurance. The Solicitor General had aggressively pressed this argument, assuring the Court that those who chose to pay the penalty would not be treated as outlaws. And the Court has long recognized that the taxing power can legitimize laws when, in practice, they function as taxes.

Roberts noted that the mandate operates mainly through the tax system: “The ‘shared responsibility payment,’ as the statute entitles it, is paid into the Treasury by ‘taxpayers’ when they file their tax returns. It does not apply to individuals who do not pay federal income taxes.… For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status.” The IRS, Roberts added, “must assess and collect [the payment] ‘in the same manner as taxes,’” and this process “yields the essential feature of any tax: it produces at least some revenue for the Government … about $4 billion per year by 2017.”

“Because the Constitution permits such a tax,” the Chief concluded, “it is not our role to forbid it, or to pass upon its wisdom or fairness.” Construed as a tax, the “mandate” survived.

Prudent as ever, though, Roberts added a qualifier: even if the policy operated as a tax, it would be deemed unconstitutional if it became the functional equivalent of a mandate. Thus, if the penalty on failing to purchase insurance were to be set so high that it would leave uninsured Americans with no rational alternative to making the purchase, it could not stand. As the Chief sternly admonished, quoting from a canonical 1928 case, “‘the power to tax is not the power to destroy while this Court sits.’”41

*   *   *

The Chief’s careful threading of the constitutional needle managed to infuriate all eight of his peers.

Ruth Bader Ginsburg is not given to the scornful, combative dissenting style that has become Scalia’s trademark. She typically sticks to respectful, restrained disagreement with the majority.42 Occasionally, she bluntly calls on Congress to overrule what she views as a serious mistake.43 In rare instances, she shares with reporters her belief that an “activist” majority led the Court astray.44 Only once in a great while does she cast her polite tone aside, tear a majority opinion apart, and remind us that she has within her all the ferocity that was needed in her role as field marshal of the legal movement for sex equality.45

In the Health Care Case, joined by Breyer, Sotomayor, and Kagan, Ginsburg unloaded on the Chief’s anti-mandate ruling. Before publishing her dissent to this part of the Court’s decision, the ever-savvy Ginsburg hosted a special strategy session with the other left-leaning justices to make sure they were all on the same page.46

Denouncing the Chief’s logic as “stunningly retrogressive,” Ginsburg likened it to rulings from the widely condemned pre–New Deal period. Roberts’s “crabbed reading of the Commerce Clause,” she wrote, “harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.” Lining up cases, Ginsburg explained that “our precedent has recognized Congress’ large authority to set the Nation’s course in the economic and social welfare realm.” Thus, “whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it.” In the Chief’s analyses of the Commerce Clause and the Necessary and Proper Clause, Ginsburg saw the specter of a world in which courts ride roughshod over Congress. Worse, in her view, Roberts not only overstepped the judicial role but also erred in his Commerce Clause reasoning: the decision to self-insure in the face of inevitable need for medical services is surely “economic activity” and is therefore properly subject to federal regulation, even by Roberts’s logic.

Ginsburg displayed little patience for the libertarian core of Roberts’s opinion—and even less patience for his allusion to broccoli. “When contemplated in its extreme,” she observed, “almost any power looks dangerous. 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 possibility of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.”47 To Ginsburg, it was silly to conjure extreme examples and insist that they showed why the Court must fabricate implausible limits on federal power over commerce. Inevitably, democracy—rather than judge-made law—is the real limit on what Congress can do, she argued.

Without so much as acknowledging the Chief’s opinion, Scalia, Kennedy, Thomas, and Alito assailed their erstwhile ally from the right. Rather than rally behind an opinion written by a single justice, they composed a joint dissent listing all four of them as its authors. This remarkable tactic invoked Cooper v. Aaron, a case from 1958 in which the Court reaffirmed its power to compel desegregation in a single opinion listing all nine justices as the authors—the only such opinion ever published.48 “Justice SCALIA, Justice KENNEDY, Justice THOMAS, and Justice ALITO, dissenting” sent a powerful message: this case strikes to the heart of the Court’s role and the most basic principles of our Constitution.

The four dissenters pulled no punches. They articulated in clear and passionate terms the visions of liberty and federalism that required them to invalidate the ACA outright: “The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.”

The joint dissent pilloried the Chief’s view of the taxing power issue: the mandate imposed what the law called a “penalty” on those who failed to comply; Obama had publicly insisted that it was not a tax; and the ACA served a manifest regulatory purpose. In the dissent’s view, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” And that would be uniquely illegitimate, the dissenters opined, for “imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.” Pronouncing a harsh verdict on the Chief’s handiwork, the dissenters concluded that “the Court today decides to save a statute Congress did not write.”

As Harvard Law School Dean Martha Minow has observed, reading the joint dissent and Ginsburg’s opinion is “a bit like traveling between two countries speaking different languages.”49 The justices disagree at a fundamental level about the meaning of the Constitution and the Court’s role in enforcing limits on federal power. Rarely do factions on the Court find themselves so far apart.

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What, then, to make of the Chief’s opinion?

In many respects, Roberts aligns himself with the joint dissent. He repeatedly assails the mandate for its intrusion on liberty and violation of federalism. Unlike Ginsburg, he valorizes the judicial role in policing limits on federal power to regulate the economy. And he creates new doctrine to limit the Commerce Clause and the Necessary and Proper Clause, seeding land mines for future Congresses to avoid. As Karlan wrote in the New York Times, “Anton Chekhov once remarked that ‘one must not put a loaded rifle on the stage if no one is thinking of firing it.’ … In [the Health Care Case] the conservative majority also laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and the Great Society—including labor, environmental, civil rights and consumer protection laws.”50

But the Chief’s decision to characterize the mandate as a tax and thereby save it creates another kind of opportunity as well. Unwilling to sanction a true mandate, and disdainful of the command-and-control vision that mandates represent, Roberts leaves room for incentive-based and indirect forms of federal regulation. The government can use the tax code to nudge people to buy insurance, though it cannot use taxes to effectively coerce choice. As Columbia Law Professor Gillian Metzger writes of the Chief’s opinion, “how the government regulates is as important as whether it regulates.”51

In this respect, the Chief, like the dissenters, adheres to a view of liberty that consists of freedom from government. As a matter of the judicial role, however, he is open to allowing Congress to use choice-respecting methods of regulation. By encouraging Congress to adopt incentive-based tools, Roberts may hope to avoid even larger regulatory impositions, such as a single-payer public health care system. As Metzger explains, Roberts repeatedly “downplay[s] the collective and redistributive aspects” of the ACA. He thus transforms the law into one aimed at “informing and empowering individuals more than affirming societal responsibility for meeting a basic human need.”

Roberts may have favored such an approach for any number of reasons. Most obviously, and quite respectably, he may have thought that it is right as a matter of constitutional law. From a certain perspective on judicial legitimacy, he may also have deemed it best to avoid a clash with the President on the eve of an election; in this cynical view, the course Roberts chose was the narrowest way to achieve that goal while remaining true to his principles. Another possible explanation is that Roberts agreed with Judge Brett Kavanaugh, who surmised in a lower court opinion that “we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help.”52 If the trend is toward privatizing social services, and away from a model of heavy taxation linked to government-provided benefits, it could be wise to ensure that Congress has the powers necessary for that shift (which, as a matter of policy, Roberts would likely favor).53

Lest anyone think he hadn’t considered the issue carefully, Roberts took pains to explain why libertarians should not fear the taxing power. After acknowledging that it is broader than the commerce power—since taxes, unlike regulations, can be imposed on people merely for existing—Roberts reasoned: “The taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs.… By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.” Taxes, moreover, generate a degree of political accountability unmatched by anything else in the policy universe.

The Chief’s opinion, Ginsburg’s partial dissent, and the joint dissent rest on contradictory views of American freedom and federalism. They also evince radically opposed beliefs about the Court’s role in deciding issues that involve these fundamental principles, many of which significantly affect economic policy. Even beyond its importance as a milestone in our national journey, the Health Care Case thereby reveals fault lines that divide not only the Roberts Court but the broad expanse of American history.

*   *   *

Americans love liberty. It’s our political oxygen, a source of our great strength, and a guiding light of the Constitution. Like most national values, though, its meaning is hotly disputed. As Abraham Lincoln wisely observed in 1864, “We all declare for liberty; but in using the same word we do not all mean the same thing.”54 Laws that strike some as abusive may offer others the promise of long-sought freedom. Caught at the intersection of competing accounts of American liberty, the ACA was fated to be a lightning rod for charges of unbounded government power.

At its core, the constitutional challenge to the ACA was mainly about protecting individual liberty to make basic economic decisions.55 Congress could educate us about buying health insurance, nudge us to buy it, and tax us to create a single-payer national system of the sort represented by Medicare. But mandating that we buy insurance on the private market was a step too far, said its detractors. Even the Court’s expansive precedents upholding federal laws, argued Georgetown Law Professor Randy Barnett, the main academic architect of the challenge to the ACA, involved regulation of existing economic activity. Those precedents did not uphold compulsion of new activity by those who had chosen to remain outside the regulated economic market.56

This argument, however, rests on a particular vision of what it means to be free. That vision has deep roots in our history and constitutional traditions but is at odds with the account of human liberty that animates much of the modern welfare state.

American political thought, stretching back to the framers, has been heavily influenced by a libertarian streak that defines liberty as the absence of government.57 Whether stemming from moralistic accounts of natural law or efficiency-based beliefs about achieving the greatest good for the greatest number, libertarian theories maintain that government action usually makes us less free. They therefore warn that the state should generally stick to basics, like ensuring security and enforcing contracts, and mostly leave individuals to act as they see fit so long as they’re not hurting anyone else. Broadly speaking, libertarians frown on laws that impose morality, limit choice to “protect” people from themselves, redistribute wealth, or regulate economic actors to advance subjective notions of fair and equal opportunity.58

To many people of a libertarian bent, the ACA appeared un-American and downright tyrannical. The law, they believed, was a brutal exercise of federal power to manipulate the health care market. Its vow to commandeer every citizen’s most basic economic choices, they argued, was unprecedented. To drive home their point, the justices who voted to strike down the mandate borrowed their warning of its peril from a revered Founding Father, Alexander Hamilton. Federal power, the dissenters intoned with citations to his writings in The Federalist Papers, must not become a “hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.”59

The Obama administration felt otherwise. When he rose to defend the ACA, Solicitor General Verrilli invoked a very different account of liberty: “We have been talking about [provisions of the ACA] in terms of their effect as measures that solve … problems in the economic marketplace, that have resulted in millions of people not having health care because they can’t afford insurance. There is an important connection, a profound connection between that problem and liberty.… There will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases [impose] and have the opportunity to enjoy the blessings of liberty.”

With that gauntlet thrown down, Verrilli’s challenge to libertarian logic was clear. Government, the Solicitor General insisted, is not only capable of enhancing freedom; government is essential to freedom. The Court, he might have added, has long upheld programs enacted to realize that ideal: Social Security, Medicaid, and Medicare, to name just a few.60

This progressive account of liberty emerged in the early twentieth century, when reformers from many walks of life questioned received truths about the role of the state.61 They pointed out that rights are not just abstractions; rather, rights are caught up in debatable choices about how society organizes itself and how the state exercises power. These progressives explored the role social structures play in shaping human lives, recognizing that liberty can be lost to accidents of birth, social conditions that stifle success, and the invisible hand of a free market. Recognizing so many species of un-freedom, progressives charted a new approach. As the historian Eric Foner writes, “to traditional notions of individualism and autonomy, Progressives wedded the idea that such freedom required the conscious creation of the social conditions for full human development.”62

The Great Depression, like no event before or since, revealed the stark contrast between libertarian and progressive accounts of freedom.63 Whereas Herbert Hoover remained wedded to traditional views and adopted a fairly passive approach to the nation’s economic crisis, FDR leapt into the breach with the New Deal, which forever transformed the role of the federal government.

In his 1944 State of the Union Address, delivered as World War II drew to a close, FDR crystallized his thinking by proposing a Second Bill of Rights.64 Arguing that familiar “political rights” had “proved inadequate,” he explained that “true individual freedom cannot exist without economic security and independence.” After all, he said, “necessitous men are not free men.” FDR’s remarkable list included the right “to a good education,” the right “to earn enough to provide adequate food and clothing and recreation,” and the right to “adequate protection from the economic fears of old age, sickness, accident, and unemployment.” It also included “the right to adequate medical care and the opportunity to achieve and enjoy good health.” FDR’s bold vision was never implemented as a matter of constitutional law; unlike some other liberal democracies, such as South Africa, the United States does not have a tradition of recognizing welfare rights. Many of FDR’s ideals, however, have since been realized in landmark social legislation.

Self-consciously in step with that liberal tradition, the ACA’s proponents viewed themselves as inheritors of a march toward securing the Constitution’s “blessings of liberty.” Immediately after the House had passed the ACA, Speaker Pelosi exulted that “this bill tonight [creates the] opportunity for affordable health care for all Americans [to] have the freedom to have a happier life [and] to have the liberty to pursue their own happiness.”65

That vision of liberty was completely foreign to the ACA’s challengers. They thought it absurd to proclaim that such a manifestly invasive law would be a boon to liberty. As Paul Clement remarked at oral argument, “The mandate’s threat to liberty is obvious,” adding that “it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” Such a command, he declared, “is a revolution in the relationship between the central government and the governed.”

*   *   *

The Health Care Case, then, triggered a war of ideological worlds. The law’s challengers worried—and its supporters hoped—that judicial ratification of the ACA would inaugurate a historic change in our social compact.66 In truth, it was inevitable that a great battle over American freedom would unfold in the Roberts Court as it weighed Obama’s signature achievement.

Observed broadly, the Health Care Case thus appears as but a snapshot of a centuries-old struggle. The joint dissenters unabashedly embrace a libertarian perspective on the ACA. Their opinion suggests that they see little redeeming virtue in the alternative vision advanced by FDR and those who followed in his footsteps. Indeed, several of these justices hinted at argument that they viewed the mandate as entirely illegitimate, the moral equivalent of highway robbery. Ginsburg’s opinion, in contrast, says little about grand principles of freedom. Instead, it stands as a statement in its own right about the Court’s limited role in selecting among accounts of liberty. To Ginsburg, that task is reserved mainly to Congress, though her partial dissent occasionally gestures toward an embrace of the progressive theory that animates the ACA. Roberts, meanwhile, walked a libertarian-inflected middle ground. He examined the powers that Congress invoked to justify the mandate, testing each to see how it could be used to burden liberty. In the end, he concluded that Congress may wield choice-respecting tools but not pure mandates.

The ACA managed to withstand a withering legal challenge, but liberty’s soul remains up for grabs in the Roberts Court.

*   *   *

The Health Care Case turned heavily on what it means to be free, but the lawyers and justices lavished attention on the balance between the states and the federal government. This may seem peculiar: why didn’t the lawyers challenging the ACA forthrightly argue that the law violated an individual’s fundamental right to control personal economic decisions? It’s a question worth asking, because the answer illuminates the basic architecture of modern constitutional law and sheds light on how that body of law affects our lives.

Although the framers were influenced by many social and economic considerations, their final product was shy on details about how the United States must order its economic affairs.67 Wisely appreciating how much they could not anticipate, the framers left most economic issues for democracy to address. The Constitution specifically protected certain property and contract rights, and it enshrined free speech and due process safeguards central to a free market, but it enumerated no general right to economic liberty.

This does not necessarily mean that the Constitution is wholly silent on economic freedom. Most of the current justices (although not Scalia and Thomas) acknowledge that the Constitution protects rights other than those specifically listed in the amendments. Many see this view reflected in the Constitution’s history and structure—and in the Ninth Amendment, which instructs that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”68 Invoking various amendments, but relying ultimately on its power to recognize new rights, the Court has struck down laws banning same-sex intimacy, burdensome limits on contraception and abortion, bans on interracial marriage, and bans on sending one’s own children to private schools.69 When the Court recognizes a right not expressly stated in the Constitution—a so-called unenumerated right—it limits both the state and federal governments.

For a time in American history, the Court aggressively protected an unenumerated right to economic liberty.70 In the late nineteenth and early twentieth centuries, it enforced an unwritten “liberty of contract” and struck down scores of progressive laws. Nowadays this period—dubbed the “Lochner era” after one its leading cases—is widely condemned.71 Laws that are today considered unimpeachable were then thought to stand on shaky ground. In 1923, for example, the Court struck down minimum-wage laws because they interfered with employees’ rights to contract with employers for lower wages.72

In the late 1930s, after a conservative Court relied partly on Lochner-style doctrines to strike down key New Deal laws, FDR went to war with the Court.73 He directly challenged its power and appointed liberal justices to replace retiring members of the conservative Old Guard. In most of these efforts, he enjoyed robust legislative and popular support, although his attempt to pack the Court by persuading Congress to expand the number of justices met with resounding defeat. By 1937, the Court had abandoned its insistence that the Constitution requires libertarianism, ending the era of judicial protection for unenumerated economic liberties.74 Since then, the justices have left most fights over economics to the democratic process.

As every lawyer involved in the Health Care Case knew, no member of today’s Court is willing to recognize a free-floating judicial power to strike down statutes that violate some supposed right of economic freedom. The only justice who has even gestured in that direction is Thomas, and on this point he is a true outlier.75 Indeed, the entire armature of modern constitutional law reflects active judicial protection of political and social rights, and minimal judicial involvement in economic affairs. Although some view this as an odd structure, arguing that “economic rights” and “civil rights” are of equal worth, it has long been accepted as a constitutionally required limit on the judicial role. Laws that burden economic choice alone—however important that choice might be in people’s lives—need only be supported by a conceivable rational basis. The Court has repeatedly declined to recognize a wide-ranging right to be free of regulation.76

Decades of precedent therefore prevented the ACA’s challengers from translating their libertarian objections directly into constitutional arguments. After all, the individual mandate didn’t force anyone to eat healthfully, ingest medications, or submit to regular physical exams. Had it done so, the mandate would likely have violated a fundamental right to have control over one’s own body.77 Instead, the mandate merely required Americans to obtain health insurance or pay a penalty. Because it burdened only economic freedom, the ACA wasn’t vulnerable to direct assault for violating a protected right. Its challengers had to rely instead on principles of federalism.

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Federalism is a key element of the American constitutional order. In agreeing to form a union, the thirteen original states ceded only some powers to the federal government, reserving all other powers to themselves. The Tenth Amendment confirms this understanding: “The powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” It does not, however, say anything about the scope of the powers delegated or identify exactly which powers the Constitution leaves undelegated.78 The Constitution thus creates, but incompletely describes, the federal system. The scope of federal power has long been defined by tradition, politics, and structural inference more than analysis of any textual blueprint.79

Questions about state and federal power sometimes seem obscure and technical, far removed from daily life. Many of these issues belong to the province of legal experts, government insiders, and undergraduate political science majors. But it would be a mistake to lose sight of the important role played by federalism in our lives and our law. As the Court has repeatedly observed, there is a deep connection between the state-federal balance and individual rights, a link essential to understanding the Health Care Case.

More than any recent litigant, Carol Anne Bond has brought the relationship between freedom and federalism into stark relief.80 Bond once loved her friend Myrlinda Haynes like a sister, but that didn’t stop Bond from trying to poison her. A thirty-four-year-old Pennsylvanian, Bond learned one day that Haynes had become pregnant after sleeping with Bond’s husband. Furious, Bond hatched a plan to burn Haynes by spreading toxic chemicals on Haynes’s mailbox, car door handle, and doorknob. Bond’s scheme, though, had a fatal flaw: the chemicals were bright orange and hard to miss. Even so, after Bond attempted to poison her more than twenty-four times in several months, Haynes slightly burned her thumb. After local police and prosecutors dropped the ball, the United States Attorney charged Bond with federal criminal offenses under an anti-terrorism law that implements the Chemical Weapons Convention. When Bond argued that the Constitution did not endow Congress with the power to pass such a sweeping criminal law, the federal government replied that she had no right to assert that claim. In its view, only a state could raise Bond’s federalism argument.

As Bond v. United States proved, transgressions of limits on federal power do not affect only states. Bond faced imprisonment under a law of questionable constitutionality. In 2011, writing for a unanimous Court, Kennedy rejected the government’s argument. He explained that “the individual liberty secured by federalism is not simply derivative of the rights of the States.… When government acts in excess of its lawful powers, that liberty is at stake.” It was precisely this fusion of freedom and federalism that formed the vanguard of the attack on the ACA.

The central insight regarding limits on federal power, credited to James Madison, is that the Constitution protects rights in more ways than one. Its most direct method of protection is to say something such as “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” By recognizing a right, the Constitution creates a strong presumption in favor of that kind of liberty. It tells Americans that we value this right; it also tells politicians to respect it and courts to guard its boundaries.

Madison, one of the most brilliant framers, nonetheless doubted that rights alone would control political majorities. In a letter to Thomas Jefferson, he argued that “experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”81

That is where the Constitution’s structural provisions, those that define the separation of powers and federalism, become vital to any account of liberty.82 As Madison recognized, the rules that establish government also define its ability and incentives to ride roughshod over individual freedom. The diffusion of power within and across levels of government is one of the Constitution’s most ingenious designs. Even as the Constitution creates and empowers a national government, it also establishes safeguards designed to prevent that power from getting out of hand. Some of those fail-safes take the form of rights, while others take the form of structural limits on where and how and by whom power can be exercised. With this political architecture in mind, Hamilton once remarked that “the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.”83

In Bond, Kennedy extolled the genius of our system. “Federalism has more than one dynamic,” he explained. “The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the states … but that is not its exclusive sphere of operation.” Rather, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” It permits “local policies more sensitive to the diverse needs of a heterogeneous society … enables greater citizen involvement … [and] makes government more responsive by putting the States in competition for a mobile citizenry.” This, Kennedy explained, is the “counterintuitive insight” of federalism: “Freedom is enhanced by the creation of two governments, not one.” He added, “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”

Scalia echoed these views at a public lecture in 2013, noting that “every banana republic, every president-for-life could boast a bill of rights.… The former Evil Empire, the Union of Soviet Socialist Republics, had a wonderful bill of rights.”84 It is the “distribution of power,” he added, that separates our Constitution. These remarks accorded with Scalia’s earlier confession that Bill of Rights cases are not the ones “I live or die for,” as it is the structure of government that ensures that laws are “not just words on paper.”85

These powerful points raise a deep question about the Court’s duty in our constitutional system, a question at the heart of the Health Care Case: what role should judges play in interpreting and enforcing structural limits on federal power? This is a deceptively hard issue. After all, limits on Congress that protect individual liberty can take forms other than judicially enforced rules. And more often than not, that is exactly what happens: a combination of politics, practicalities, and custom usually keeps the federal government from coloring outside constitutional lines.

From time to time, though, the federal government is accused of crossing a constitutional limit. On those occasions, the Court may be called upon to issue a final judgment and to offer broader pronouncements on the scope of federal power. Since the 1930s, the Court has generally taken a cautious view of its role in this endeavor, emphasizing that the federal government enjoys broad powers under the Constitution. As a result, political and practical checks are often the only game in town. (As we have learned in recent years, though, politics—and particularly partisanship—can provide a more than formidable check on Congress’s ability to exercise power.86)

The Court’s broad view of federal power dates back to the early Republic, when a series of famous cases firmly settled that the Constitution permits a vital national government. As Chief Justice John Marshall wrote in 1819 in McCulloch v. Maryland, “the sword and the purse … and no inconsiderable portion of the industry of the nation are intrusted to its Government.… A Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution.”87 This is not to say that the early Court gave Congress and the President carte blanche. But it did adopt a generous view of most federal powers, including all of the powers at issue in the Health Care Case: the regulation of commerce, taxing and spending, and Necessary and Proper Clause authority.

From the mid-nineteenth century through the 1930s, around the same time it recognized rights to economic liberty, the Court tried to manufacture and enforce stricter limits on the federal government. It quickly discovered, though, that creating such rules is a challenging task. The Court came to rely on arbitrary and even bizarre doctrine; for example, in striking down federal laws, it reasoned that agriculture, manufacturing, and mining do not constitute “commerce” within the meaning of the Commerce Clause.88 In the end, the Court’s attempt to parse the interconnected national economy and render segments of it off-limits to Congress proved ill-fated. In the late 1930s, the whole project collapsed in acrimony, battered by its collision with FDR and his New Deal. The current justices know this history well: while criticizing Roberts’s refusal to uphold the mandate under the Commerce Clause, Ginsburg bluntly pointed out that “this Court’s former endeavors to impose categorical limits on the commerce power have not fared well.”

From the mid-1930s to the late 1980s, the Court consistently upheld federal actions against claims that they overstepped limits set forth in the Constitution. Its rulings etched into precedent a virtually unlimited view of the federal government’s power to craft policy, subject to the formidable check of politics.89 Then, in the 1990s and early 2000s, five conservative justices handed down a series of rulings that began to identify judicially enforceable limits on federal authority.90 These opinions, none involving major legislation, portended substantial future constraints on federal power. Shying away from systemic statements of new rules, they struck at particular federal acts while emphasizing the dignity of the states—all to the end of implementing what Chief Justice William Rehnquist once called “the tacit postulates” of “the constitutional plan.”91 The Rehnquist Court stepped toward a more vigorous account of federalism mainly by identifying “non-economic” conduct that the Commerce Clause does not empower Congress to regulate and by giving new meaning to the Tenth Amendment’s protections of state sovereignty (including, for example, limits on federal commandeering of state agencies).

Even so, these rulings did not significantly disturb the received wisdom that the modern federal government wields broad power, only marginally limited by the Court and the Constitution, in presiding over the American economy. The Court expressed a mood, but one without much doctrinal force. As soon became clear to many scholars and judges, the Commerce Clause is not a workable tool for a federalism renaissance—not least because efforts to limit Congress’s power over “commerce” have always collided with the manifest implausibility of parsing domains of American life and deeming some of them noncommercial. (After all, most behavior, in the aggregate, has a substantial economic effect.) Some scholars turned to history or formal theory to help in that effort, but the difficulties of translating even purportedly clear original understanding to the modern world posed a daunting obstacle.92 Legal rules built around state sovereignty encountered problems of their own. For one thing, many potentially troubling uses of federal power don’t involve a direct assertion of federal power over state governments. Further, the federal and state governments have created elaborate and innovative cooperative federalism schemes, in which they share power in novel and sometimes beneficial ways that the Court is reluctant to disrupt by imposing rigid constitutional rules.93 In those sorts of relationships, states can wield a wide range of tools to protect their prerogatives other than the threat of judicial intervention.94

Notwithstanding some of the limits of then-existing doctrine, in the Health Care Case, the ACA’s opponents, moved mainly by beliefs about liberty, struck at the mandate using the language of federalism. They knew that a majority of the Roberts Court spoke this language fluently and was open to innovative doctrinal arguments. Extolling the liberty-protecting virtues of limited national government, they argued that Congress had exceeded its powers, and they called on the Court to offer the Obama administration a lesson in basic civics. Most radically, they asked the Court to fashion new constitutional law limiting the federal government.

That is exactly what Roberts and the joint dissenters did, embracing arguments about the scope of the Commerce Clause and the Necessary and Proper Clause that had never before been invoked to strike down an Act of Congress. This is why Ginsburg’s opinion goes on at such length about the judicial role: her colleagues had ventured into new and treacherous territory. Summoning decades of history, she protested that the Court had no business in such rocky waters.

*   *   *

Sometimes the trick to defeating legal arguments is finding their limiting principle—or their lack of one. In debates over the ACA, opponents of the law relied on this strategy to brilliant effect, criticizing the law’s defenders for failing to identify any worthwhile limit on Congress’s power to regulate American life. If the Constitution means anything, they argued, surely it means that Congress cannot have a full-blown police power. Yet only such an unbounded power, they insisted, could possibly support the mandate.95

This was a strong argument, so far as it went. Ultimately, however, it turned on the hotly disputed question of whether to describe self-insurance as economic activity that could be regulated or as economic inactivity that should be off-limits to the government. (And on whether the supposed line between economic activity and inactivity makes any sense as a limit on the scope of Congress’s authority under the Commerce Clause.) Given that the battle took this form, the Solicitor General’s refusal to identify other limits on federal power made tactical sense: why concede today a power you might need tomorrow?

The attack on the mandate, meanwhile, faced its own difficulty: it could prove too much. As a general proposition, denying the federal government power to regulate will almost always increase liberty, at least from a libertarian point of view. But that doesn’t tell us which federal laws we should find to be prohibited by the Constitution’s structure of federalism. Nor does it tell us which powers it would make sense to deny to Congress even as we otherwise allow the national government a wide range of authorities. Federalism can protect liberty, but a workable theory of federalism must do more than say that every Act of Congress that burdens individual liberty should be prohibited by the Constitution’s state-federal structure. Instead, it must afford an explanation of why, as a matter of constitutional history and principle, a challenged law relies on power that should be deemed distinctly dangerous at the federal level. If we are to deny Congress certain powers but allow states to wield those same powers, we can reasonably ask why they pose a unique threat in the hands of one legislature and not the other.

Bond is illustrative. It involved a federal prosecution for a failed attempt to poison a romantic rival, brought under a law Congress had passed to enforce an international chemical weapons treaty. The law did appear to cover Bond’s conduct, but few could ever have imagined it being used to prosecute a garden-variety local offense. More important, we have good reason to worry about the federal government stepping out of bounds when exercising a wide-ranging “police power” through criminal law. As compared to local, elected prosecutors, vast centralized bureaucracies like the Justice Department may be less accountable. The enforcement of criminal law, moreover, often embodies moral judgments and decisions about priorities that vary dramatically from community to community. Partly for that reason, America enjoys a strong tradition of reserving most criminal justice functions to local and state officials. Nor is criminal law the only field we mostly leave to states: family law, which governs such matters as divorce, marriage, and adoption, has long been the nearly exclusive province of state government. Few would disagree that local control over legal issues involving families is generally desirable.

Seen in this light, the Health Care Case presented difficult questions for those eager to dismantle the ACA. Is it uniquely troubling for the federal government to control basic economic decisions, such as whether Americans buy insurance on the private market? Is it less troubling if Americans are not compelled to buy insurance by the federal government but simply face a modest tax penalty if they decline to do so? Finally, against a background of broad federal authority—which includes the power to ban goods, regulate virtually all commerce, levy substantial taxes, and create schemes like Welfare and Medicaid—what about the ACA’s purchase mandate made it a singularly dire threat to the liberty guarded by constitutional structure?

The ACA’s foes spent little time explaining why mandates, in particular, are acceptable at the state level but unacceptable at the federal level. They noted that state-level mandates, unlike federal mandates, can be escaped simply by moving to another state, though the difficulty of uprooting one’s life makes this a pretty unlikely option.96 They described the mandate as “unprecedented,” though that, too, is a relatively weak attack, since there must be a first time for any new kind of federal policy. And they warned of a fundamental change in the relationship between governed and government, though this objection seems equally applicable to many other tools of federal power. (Indeed, that precise objection was raised in response to the initial exercise of many federal powers that we now take for granted, including the power to prohibit commerce altogether and the power to establish welfare schemes.)

Federalism is a marvelous thing, but structural arguments require coherent explanations of why certain kinds of decisions should be denied to particular levels of government. Apart from repeating the mantra that self-insurance is best viewed as inactivity and that regulating inactivity is uniquely threatening to liberty, the ACA’s critics struggle to offer a fully reasoned account of why it is especially threatening for Congress, in particular, to compel us into action to address a national problem. And the activity/inactivity line doesn’t hold up terribly well on close inspection; it turns out a lot of behavior can fairly be characterized in either manner.97

In many ways, then, the strongest glue holding this attack together was a libertarian belief in a right to personal control over economic decisions. It was the ACA’s violation of this right, a right that dare not speak its name, that made its “unprecedented” nature and effect on the social contract so troubling. In the eyes of many of its challengers, the federal government had to be denied the power to mandate the purchase of insurance because no government should have it. As a legal matter, their argument would have held little sway if directed at a state law, given judicial unwillingness to protect unenumerated economic rights. But when aimed at Congress, the argument gained traction because it found natural expression in the language of limited federal powers. Congress must not have all powers—and given its sweeping implications, this power, perhaps more than any other, must qualify as beyond the pale.

Although the argument made by the ACA’s opponents was ultimately unsuccessful, five justices looked kindly on it. This was itself a remarkable sign of things to come. Since the New Deal, advocates of limited federal authority have watched helplessly as the Court conferred nearly boundless power on Congress. Yet over the past several decades, many Americans have grown insistent that constitutional limits on federal power vis-à-vis the states exist; that they must be enforced by the Judiciary; and that they serve vital functions. In their case against the ACA, conservative and libertarian litigators saw a rare opportunity to vindicate core premises of the federalist vision. If they lacked a complete account of why purchase mandates should be prohibited, even as other vast federal powers are allowed, that is not a fatal objection. Indeed, many of these litigators would likely take issue with other powers that Congress currently enjoys clear authority to exercise. And a last stand is rarely the most elaborately designed battle maneuver. Although they went down in defeat, the attack on the ACA offered its challengers a chance to rally believers in state-centric governance by letting loose the war cry of “Federalism” just at the moment when the nation’s ears were most carefully attuned.

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In the Health Care Case, five justices accepted versions of the challengers’ arguments. In so doing, they signaled a willingness, perhaps even an eagerness, to resume a judicial role in limiting federal economic regulations that the Court had largely abandoned in 1937. They also suggested an inclination to take a harder look at laws affecting economic liberties.

The Court’s long-standing reluctance to intervene in economic policy is no guarantee that it will remain forever dormant. For the time being, though, the Court seems entirely unwilling to return to a world of Lochner-style liberty of contract. In 2013, for example, Scalia emphatically rejected such a project: “I have long been an advocate of the proposition that it is not for judges to write their own policy preferences into the Constitution.… Economic liberty is not an exception to this rule. In a democracy, if the basic law so permits, the legislature may decide to replace the free market with central planning, however unwise it may be.”98 It seems clear that Scalia’s peers on the Roberts Court share his disinclination to open that can of worms.

Yet in a series of rulings involving other constitutional rights, this Court has gently tiptoed toward a bolder role in economic matters. Sorrell v. IMS is a prime example of this trend.99 In Sorrell, the Court struck down a Vermont law designed to lower prescription drug prices. Vermont had tried to prevent pharmacies from giving drug companies detailed information about the prescription practices of individual doctors—data that drug companies used to tailor their marketing tactics to convince doctors to prescribe pricier drugs. The Vermont law, like the ACA, sought to leverage principles of economics to deliver effective health care at a lower cost. Joined by Roberts, Scalia, Thomas, Alito, and Sotomayor, Kennedy saw not simply an economic regulation but an abridgment of free speech. Invoking decades of precedent treating commercial advertising as a form of protected expression, he put the law under an unforgiving First Amendment microscope and declared it invalid.

In an anxious dissent joined by Ginsburg and Kagan, Breyer cited Lochner and cautioned that the Court was expanding the First Amendment into new and inappropriate terrain. In his view, Vermont’s law was merely a regulation of economic activity and should have been tested under a far more forgiving judicial standard. To Breyer, the First Amendment’s potent limits on government simply didn’t apply here.100

Breyer’s fear was understandable. To protect the public and ensure fair markets, economic regulations often govern the exchange of information—its timing, form, accessibility, and content. We tell drug makers what they can say on labels and financial institutions what they must disclose to investors. We limit access to medical data and require corporations to disclose key facts to shareholders. In an information age, as the line between economic transactions and speech blurs, the Sorrell approach might imperil whole swaths of financial, corporate, consumer, and medical regulation. Aggressively pursued, it might lead the Court to a far more prominent position in regulating transactions central to the modern marketplace and, thus, expand the judicial role in shaping ground rules for vital segments of the American economy.101

Sorrell is part of a line of Roberts Court cases suggesting an appetite for a more active judicial role in overseeing economic affairs. Individually they may not say much, but viewed together they point the way toward more assertive use of constitutional law by a majority of the Court to advance deregulatory economic beliefs.

In 2010, for example, in a case about who owns the pricey real estate created by Florida’s beach-restoration programs, Scalia urged the Court to adopt a very broad view of when the state has “taken” property and must therefore pay fair compensation.102 Two years later, invoking the First Amendment, Alito limited the procedures by which any public sector union could adjust the mandatory fees it collected periodically from all the workers in the bargaining unit it represents. Alito strongly implied that the Court is on the verge of imposing additional rules that would limit the ability of unions to prevent nonmembers from “free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred”—rules that would strike at the heart of public sector unions’ ability to form and thrive.103 That same year, in a case arising from a sinfully boring fight over sewer improvements in Indianapolis, Roberts dissented and invoked equal protection principles to explain why he would invalidate the city’s unusual method of financing its project.104 As Linda Greenhouse noted in the New York Times, this was one of exceptionally few cases not involving race in which the conservatives saw a violation of the Equal Protection Clause and the liberals did not.105 The Chief conceded in his dissent that equality-based judicial intervention in matters of taxation and regulation “is and should be” rare. “But,” he added, “every generation or so a case comes along when this Court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context.”

Judicial cries of “enough is enough” that claim to be once-in-a-generation events have a way of recurring sooner than expected. When such cries invoke an important principle, predictions that they will not become part of a pattern should be viewed with skepticism. And in this instance, it’s worth noting that the claim was issued by a youthful chief justice of the United States, just three weeks before his landmark opinion in the Health Care Case.

More notable still is the way in which all these cases—involving Vermont drug laws, Florida beach-nourishment programs, a public sector union in California, and sewer financing in Indianapolis—signal a loosely unified project. It is increasingly evident that the Roberts Court is prepared to more closely scrutinize economic regulation, both state and federal, with an eye toward protecting a wide range of related individual rights.

This trend has been accompanied by a heightened willingness to explore constitutional limits on federal power in particular. Thomas has spent decades writing separately on this point, but now his right-leaning colleagues are also taking pains to disapprove of anything that looks like a federal “police power.”

Thus, in United States v. Comstock, a 2010 case about a law that permits the civil commitment of sexually dangerous criminals beyond the date they would otherwise be released from jail, the Court engaged in a heated debate over limits on the Necessary and Proper Clause.106 Breyer upheld the law, adopting a broad view of Congress’s lawmaking powers. But Kennedy and Alito, in concurrences, and Scalia and Thomas, in dissent, firmly resisted Breyer’s expansive reasoning. Invoking the Constitution’s structure of federalism, they argued that the Court should more carefully and critically scrutinize Congress’s claim that its law really was both necessary and proper to carry into effect its other powers. A similar debate played out two years later in United States v. Kebodeaux, an otherwise minor case about sex offender registration requirements. Breyer once again wrote for a majority to uphold federal power, but Scalia and Thomas forcefully objected in dissent that Congress had taken a step too far. Strikingly, Roberts wrote separately, joined by Alito, to prevent “incautious readers [from thinking] they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power.”107 Such a power, he added, “does not exist.” The Chief rarely writes concurrences; he wrote only two of them in the whole 2012 term. His decision to write in Kebodeaux revealed his sustained interest in federalism.

Together, Comstock, Kebodeaux, and the Health Care Case mark a new and momentous development in conservative efforts to articulate judicially enforceable constitutional limits on Congress. The Commerce Clause and the Tenth Amendment remain important, but now the Court is building jurisprudence to narrow Congress’s power under the Necessary and Proper Clause, which serves the vital role of allowing Congress leeway to effectuate all its other grants of power.108 In the Health Care Case, the dissenters also placed Congress’s power to tax and spend for the general welfare under a microscope, hinting at the need for a reevaluation. Thus, in opinions haunted by fear of a federal “police power,” the Court has shifted its focus away from protecting traditional spheres of state sovereignty and is now engaged directly with questions of when Congress is empowered to regulate at all, regardless of any intrusion on the states. Dosing their writings with unsubtle concern about the danger of federal tyranny, the five right-leaning justices have undertaken a lawmaking project with the potential to launch the Court into a more prominent—and disputed—role in policing its coordinate branches.109

The Health Care Case thus perfectly captures what might best be imagined as a double helix of increased judicial oversight. One strand involves the direct protection of personal freedom in economic affairs from all levels of government. The other strand involves a restriction of federal power, invoked in no small part to back up that protection of individual economic liberty. Each strand of this double helix incorporates a vision of liberty from government, not liberty enabled by government, and each augurs a more active role for the Court in matters that it once left mainly to democracy.

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In recent years, some scholars have warned that the Roberts Court stands poised to revive the ghost of an ancient enemy: Lochner-style doctrines of economic liberty. Their concerns are almost certainly exaggerated. Nobody on this Court seems eager to return to the pre–New Deal age of judicial recognition of a vague, unenumerated right to be free of regulation. Nor is the Roberts Court likely to return us to the maze of arbitrary doctrines that once limited federal power to preside over an interconnected national economy.

But this does not mean that scholars who see echoes of the past are wholly off base. In its own way, the Roberts Court has conjured the spirit and spell of a pre-1930s world, moving sporadically but unmistakably toward greater solicitude for economic liberty and judicial limits on federal power. The Health Care Case, a remarkable ruling in its own right, is the most significant sign yet of what may wait ahead. In truth, the specter haunting the regulatory state is not a ghost returned from pre–New Deal days. It may just be the Roberts Court.