Chief Justice John Roberts left U.S. Supreme Court watchers dumbfounded.  Before the release of the opinion in National Federation of Independent Business v. Sebelius, pundits expected the healthcare case to turn on the Commerce Clause and for Justice Anthony Kennedy to be the usual swing vote.  If Kennedy sided with the conservatives (Roberts, Scalia, Thomas, and Alito), so the conventional wisdom went, then the Patient Protection and Affordable Care Act (PPACA) would be struck down as unconstitutional.

But on the last day of the Court’s term, Roberts stepped out with the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) to uphold the individual mandate as a legitimate exercise of Congress’ taxing power.

Before setting forth the delegated powers, the Constitution declares that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.”  To determine whether the monetary exaction from individuals who refuse to purchase health insurance was legitimate, the Court had to determine if the exaction was an enforced contribution to provide for the support of the government (a tax) or merely an exaction imposed as punishment for an unlawful act (a penalty).  If the latter, the exaction must be supported by an enumerated power that permitted broad regulatory action.

The PPACA commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.”  Right after this mandate, the statute states that if a person fails to comply with this requirement, “there is hereby imposed . . . a penalty.”   Typically, the meaning of a statute is determined by the language used by the legislature, if the language is plain and clear.  The judiciary limits its analysis to the text and does not delve into legislative history or utilize other tools of statutory construction that are available when ambiguity or vagueness infects the text.

The words of the PPACA are pellucid and are consistent with the explanations given by Congress and the President when peddling the new law.  Healthcare costs are exorbitant.  When uninsured individuals use health services and cannot pay for them, the costs are passed on to others.  Cost-shifting leads to higher insurance premiums and more people are unable to afford healthcare.  This cycle continues to drive up costs.  Consequently, the President and Congress sought to fix the problem by mandating that everyone have insurance.  Those who refused to comply with the mandate would be penalized.

President Obama was also crystal clear that his signature piece of legislation was not a tax.  In September 2009, Obama appeared on ABC’s This Week and insisted that there was no tax increase with the individual mandate.  “For us to say you have to take responsibility to get health insurance is absolutely not a tax increase,” Obama said in response to questioning.  Later, he added, “Nobody considers that a tax increase.”

The Court’s majority, however, averred that the PPACA “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.”  Viewing the mandate as “a tax hike on certain taxpayers who do not have health insurance,” it was a mundane exercise of Congress’s delegated powers.  The majority was not swayed by Congress’s unequivocal language describing the so-called tax as a “penalty” or by President Obama’s repeated assertion that the PPACA was not a tax increase.

Yes, Congress called it a penalty and enacted it to punish those who did not comply with the legal mandate to buy insurance, but what they really meant, according to the Court majority, was to suggest that everyone purchase insurance and to tax those who declined to follow congressional advice.

Nor did the majority see a distinction between using the taxing power to dissuade people from engaging in conduct (e.g., taxes on cigarettes) and using the power to compel individuals to take action (e.g., penalizing those who don’t buy insurance).  Defending the PPACA as an exercise of the taxing power was clearly a second-string argument used by the government’s lawyers, but the Court’s opinion instructs Congress on how to craft future police-power legislation to pass muster as a humdrum tax.

Thank you, Chief Justice Roberts, for advising our aggrandizing national legislators on how they can further escape the Constitution’s careful delineation of power.

Five members of the Court rejected the government’s primary argument that the PPACA was a proper exercise of Congress’s commerce power.  Under the Constitution, Congress has the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  When the Constitution was drafted, commerce was understood, as explained in Samuel Johnson’s Dictionary of the English Language (3d ed., 1765), as “intercourse, exchange of one thing for another, interchange of anything; trade; traffick.”

The purpose of the Commerce Clause was to establish a free-trade zone within the United States by removing internal trade barriers—to promote the unhindered traffic and exchange of manufactured items and foodstuffs.

Before the Constitution, some states taxed goods that were simply passing through on their way to another state.  Such taxes raised the price of goods and discouraged trade.  By granting Congress a commerce power, the Framers sought to destroy these internal trade barriers.  In the words of Alexander Hamilton, an “unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions.”

Of course, as the term interstate commerce implies, the Framers had in mind trade between persons of one state and another.  Purely internal selling or exchange—intrastate trade—was excluded.  The great Virginia legal scholar St. George Tucker observed matter-of-factly that, by delegating to Congress the power to regulate commerce “among” the states, the Constitution left “the regulation of internal commerce of each state, to the states, respectively.”

Moreover, the writings of the friends of the Constitution and the debates in the ratifying conventions show that all agreed that objects such as agriculture and manufacturing were not “commerce” and could not be regulated by Congress.  Agricultural commodities and widgets might become articles of commerce and be traded between the states, but the activity leading to the ultimate disposition of the goods was outside of Congress’s enumerated powers.

Today, the definition of commerce has been stretched so that government can regulate any intrastate activity that substantially affects a national market.  During World War II, the Court upheld government regulation of how much wheat an individual may grow for personal consumption.  The Court found that commerce was affected because if a substantial number of Americans grew their own wheat and thus opted out of the market for wheat, this could influence the national market.

To his credit, Roberts concluded that the commerce power does not allow government to compel individuals to become active in commerce by purchasing a product.  One must first be involved in an activity, rather than remaining inactive, before government can regulate.  “The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions,” Roberts wrote.  “Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

While conservatives can take some solace in these words, the opinion’s Commerce Clause pronouncement was unnecessary to the result because the mandate was upheld under the taxing power.  In future cases, champions of national power can make a compelling argument that portions of Roberts’ opinion dealing with commerce are dicta and, thus, not binding.

Even if Roberts’ disquisition on the Commerce Clause is good law, it still leaves intact the notion that commerce means economic activity and that government can regulate all economic activity that could substantially affect a national market.  Despite the voices of critics, Congress’s broad power under the Commerce Clause—the modern catch-all clause of the Constitution—has not been neutered.

The Court did finally place some limits on Congress’s spending power.  The national government has the power “to pay the Debts and provide for the common Defence and general Welfare of the United States.”  Nationalists have used this prefatory language to claim that Congress has the power to spend money even if the expenditure is not tied to an enumerated power.  In 1936, the Court sided with the nationalist interpretation, and since then Congress has spent money on various local matters by bribing and coercing state governments.  For example, the reason the states have enacted a drinking age of 21 is because Congress threatened to withhold five percent of federal highway funds from states that maintained a lower drinking age.  The Court has claimed that there are limits on the power to spend, but until Sebelius it had never imposed any.

Under the PPACA, Congress threatened to pull all federal Medicaid funds if the states did not agree to cover all persons under age 65 and with incomes below 133 percent of the federal poverty line.  The states contended that such a condition on the receipt of funds amounted to improper coercion and impinged on state sovereignty.  Because Medicaid funds make up an average of 20 percent of state budgets, a withdrawal of federal funds would plunge states deep (or deeper) into the red.  In other words, the states argued that they had no real choice on whether to expand the program per Congress’s directives.

The Court, in a seven to two vote, agreed with the states.  It held that when the states first agreed to take the federal money for Medicaid, they could not have foreseen such a dramatic change in the conditions of the grant.  “Though Congress’ power to legislate under the spending power is broad,” the Court lectured, “it does not include surprising participating States with post-acceptance or retroactive conditions.”  The threat to withdraw Medicaid funds absent state expansion of the program, the Court concluded, was not a financial inducement, but an unconstitutional “gun to the head.”

Roberts’ defection to the left has certainly damaged his working relationship with the Court’s conservatives.  Interestingly, the joint dissent of Scalia, Thomas, Kennedy, and Alito makes no mention of Roberts’ opinion—not even the parts with which the dissenters agreed.  According to Jan Crawford of Face the Nation, sources inside the Court indicate that Roberts was originally on board with striking down the individual mandate as unconstitutional, but switched sides when the media and the President ratcheted up pressure on him.  Justice Kennedy tried to persuade him to rethink the matter, but Roberts refused.  At this point, the conservative justices cut off all communication with Roberts and crafted the joint dissent as if Roberts did not exist.

Sebelius is Chief Justice Roberts’ effort to build a legacy.  On the one hand, he wants to be seen as an intellectually sound conservative jurist who is not afraid to impose limits on national power.  And his commerce and spending-power holdings do reject some rather expansive interpretations of the Constitution offered by the government.  Yet, on the other hand, he longs to be known for judicial restraint—the umpire who simply calls balls and strikes rather than participating in the contest.

Judicial restraint is a virtue that too many judges lack.  But if Roberts takes a close look in the mirror, he will see that he is clad not in the umpire’s neutral garb, but in a colorful jersey identical to that worn by Team Ginsburg.

By using legal gymnastics to make a penalty a tax, Roberts actually engaged in judicial activism.  He twisted the words and meaning of the Constitution to reach a result inconsistent with the text and established law.  His opinion is an embarrassing attempt to curry favor with the leftist intellectuals who were enamored of Obama­Care.  Roberts is but the latest Republican-appointed judge to succumb to the “Greenhouse Effect”: trading constitutional principle for the accolades of talking heads such as Linda Greenhouse, the longtime Supreme Court reporter for the New York Times.

Roberts no doubt exults in reading the op-eds comparing him to Oliver Wendell Holmes and John Marshall.  A better comparison would be Earl Warren and the activist jurisprudence that marked his tenure as chief justice.