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The Affordable Care Act, 5-4, and the Legacy of the Roberts Court: Part 1

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Peter Lyn René
June 30, 2020 

Were the landmark 2012 Affordable Care Act ruling (and subsequent rulings) an attempt by the Chief Justice of The United States, John Roberts, to reframe what scholars and court observers have seen as a highly charged political environment with a strict conservative ideology in the nation’s highest court? To fairly answer this question, it is difficult to ignore one of the lasting legacies, so for, of the Roberts Court: bitter and partisan 5-4 decisions, with the five conservative justices against the four liberal justices dissenting. John Roberts was confirmed by the Senate as Chief Justice of The United States in 2005 by a 78-22 margin. From 2005 to 2018, the Court reached 5-4 decisions 196 times with s75% of these landmark decisions split down ideological lines. This has led scholars and critics to ponder: is the Roberts Court legitimate? Perhaps surprisingly, the justices themselves also worry about the Court’s legitimacy, albeit in a different way. Chief Justice Roberts has repeatedly lamented the Court’s public acceptance as an impartial arbiter of constitutional rules, which has suffered in the polarized political environment.

While Chief Justice Roberts has repeatedly exclaimed the Court’s independence, dismissing the notion that there are no Obama judges or Trump judges, Bush judges or Clinton judges, it is difficult to see find support for his denunciation when his count continues to issue 5-4 decisions, which are drawn particularly down political and ideological lines. The question of the Court’s legitimacy, that is, the public’s perception that politicians were given lifetime appointments to the high court, is of great concern for Chief Justice Roberts— though the justices say that they are attempting to do what is right for the country even while their decisions are deeply partisan in nature. The Chief Justice is correct to be concerned about the legitimacy of the Supreme Court. 5-4 decisions are never good for the country when they are down partisan lines.

Two of the most polarizing decisions that do little to dispel the notion of an illegitimate Court are: Citizens United vs. Federal Election Commission (2010), in which the Supreme Court ruled that restrictions on political expenditures and donations by corporations and labor unions are unconstitutional; and Shelby County v. Holder (2013), in which the Court struck out a key provision of the Voting Rights Act, the landmark 1965 law that required certain states and localities with a history of discrimination against minority voters to get changes cleared by the federal government before they went into effect. Both were 5-4 decisions that elevated concerns of a “not so legitimate” Court.

But hope lives. First, the Justices and in particular, the Chief Justice, are aware of the potential partisan legacy they may leave behind once they retire from the Court; and second, we can point to four landmark decisions that returned some legitimacy to the Court: National Federation of Independent Business v. Sibelius (2012)—The Affordable Care Act (ACA), Obergefell v. Hodges (2015)—Same Sex Marriage, Bostock v. Clayton County (2020)—Gay or transgender rights under the Civil Rights Act of 1964, and Department of Homeland Security v. Regents of the University of California (2020)—An Obama-era program that protects hundreds of thousands of immigrants brought to the United States as children from deportation. In this article, we will look briefly at the ACA.

The Affordable Care Act (ACA), President Barack Obama’s signature piece of legislation, has faced the wrath of Congressional Republicans since it passage into law on March 23, 2010. Republicans tried at least seventy times in their attempts to repeal the ACA and replace it with something yet to be determined. ACA has survived several challenges in the lower federal courts, but the Supreme Court on June 25, 2015, finally upheld it as constitutional. The Supreme Court not only upheld the ACA as the law of the land—the Chief Justice assured, at the time, all future challenges to the law would likely fail. This preserved the biggest growth in health coverage since Medicare and Medicaid were created over fifty years ago.

Justification for the decision was based on the Commerce Clause. The majority opinion reasoned that ACA was constitutional because the mandate, which was at the core of the lawsuit, was in fact a tax; and as such, since it was in Congress’s powers to levy taxes, the ACA was in fact constitutional since it was a law passed by Congress. In another landmark 5-4 decision, Chief Justice John Roberts expressed that while the federal government does not have the power to order individuals to buy health insurance, the government does have the power to impose a tax on those without health insurance. This was an unusual decision because the Chief Justice joined the Court’s four liberal justices to uphold the ACA, stunning liberals, and angering conservatives who viewed it as unconstitutional. This 5-4 ruling I believe was an attempt by the Chief Justice to soften the crowing chorus of scholars questioning the Court’s legitimacy. Roberts was very wary of invalidating a major piece of legislation that was years in the making without careful thought and analysis. Therefore he sought to save the law the only way he could: on constitutional grounds.

The Chief Justice also states that the nature of the individual mandate being upheld under the Taxing Clause does not suddenly give or create new powers for Congress simply because of the decision to uphold the ACA, based on the Commerce Clause. In fact, Roberts reminded the Court that his decision simply determines that Congress already had powers to tax.

Author: Peter Lyn René is a Visiting Professor at the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University. He is Chairman, and CEO of The Caribbean American Heritage Foundation of Texas, a 501(c)(3) non-profit organization. He has an extensive background in international Non-Profit Policy, Administration and Management, Information Technology and Project Management.  René is a certified Basic and Advance Family Mediator since 2010, and has mediated dozens of cases in the Justice Courts in Harris County, Texas. René serves on the Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, United States Department of State. He serves on the Executive Committee of the United Nations Council of Organizations. René can be contacted at [email protected].

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