The Architecture of a Republic: Scalia’s Dissent to Obamacare

By now you know the U.S. Supreme Court has ruled on “Obamacare.” You also know it was upheld. But there’s more to know, and you don’t have to read all 193 pages of the ruling to learn it. I’m talking about the beauty of a Scalia dissent, especially this one.

Scalia’s dissent, joined by three other Justices, is not just a bunch of legalese but, rather, directs our attention to the very architecture of the American Republic. Let’s listen to what he has to say.

We’ll begin with Scalia’s sober concluding summary:

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. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

There was at least one salutary feature of the decision; the majority agreed that the Commerce Clause isn’t broad enough to justify Obamacare. The Commerce Clause of the United States Constitution tells us that Congress has the power “To regulate Commerce…among the several States.” Government attorneys argued that The Commerce Clause gives the federal government the power to mandate the purchase of health insurance and the power to deny­ nonconsenting States all Medicaid funding, prominent features of the Patient Protection and Affordable Care Act (Obamacare). Scalia disagreed:

Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to com­pel the States to function as administrators of federal programs.

… Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future. If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

… the Commerce Clause, even when supplemented by the Necessary and Proper Clause, is not carte blanche for doing whatever will help achieve the ends Congress seeks by the regulation of commerce. And the last two of these cases show that the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.

…It is true that, at the end of the day, it is inevitable that each American will affect commerce and become a part of it, even if not by choice. But if every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.

…All of us consume food, and when we do so the Federal Government can prescribe what its quality must be and even how much we must pay. But the mere fact that we all consume food and are thus, sooner or later, participants in the “market” for food, does not empower the Government to say when and what we will buy. That is essentially what this Act seeks to do with respect to the purchase of health care. It exceeds federal power.

…The dissent [of Justice Ginsburg] claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.”… But we have done so. It threatens that order because it gives such an expansive meaning to the Com­merce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroy­ing the Constitution’s division of governmental powers

…The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” and more specifically “the problem of the uninsured,”… The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national­ problem power.

(Of course one day the failure of some of the public to purchase American cars may endanger the existence of domestic automo­bile manufacturers; or the failure of some to eat broccoli may be found to deprive them of a newly discovered cancer­ fighting chemical which only that food contains, producing health-care costs that are a burden on the rest of us—in which case, under the theory of JUSTICE GINSBURG’s dis­sent, moving against those inactivities will also come within the Federal Government’s unenumerated problem­solving powers.)

Under Obamacare, anyone who doesn’t purchase insurance is subject to a financial penalty. The majority ruled that Obamacare is constitutional because it interpreted that penalty as a tax that is within the powers of Congress. Scalia rejects that characterization of the penalty based, again, on the architecture of our Republic:

But we cannot rewrite the statute to be what it is not. “‘“[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’”

For all these reasons, to say that the Individual Man­date merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Repre­sentatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off. The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.”… 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.

Another contentious feature of Obamacare is the sanction on states that don’t comply: they lose Medicaid funding. The government contended that it remains voluntary for states to accept or reject such funding. Scalia argues that this sanction is really coercion and it threatens our system of federalism:

This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields,” … is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’”… “[T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to oblite­rate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.”

…Coercing States to accept conditions risks the destruc­tion of the “unique role of the States in our system.”… “[T]he Constitution has never been understood to confer upon Congress the ability to require the States to govern accord­ing to Congress’ instructions.”

…When Con­gress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Govern­ment makes a controversial decision while acting on its own, “it is the Federal Government that makes the deci­sion in full view of the public, and it will be federal offi­cials that suffer the consequences if the decision turns out to be detrimental or unpopular.”… But when the Federal Government compels the States to take unpopular actions, “it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”… For this reason, federal officeholders may view this “departur[e]from the federal structure to be in their personal interests. . . as a means of shifting responsibility for the eventual decision.”

… Acceptance of the Federal Government’s interpreta­tion of the anticoercion rule would permit Congress to dic­tate policy in areas traditionally governed primarily at the state or local level.

Scalia therefore concludes:

The Act before us here exceeds federal power both in mandating the purchase of health insurance and in deny­ing nonconsenting States all Medicaid funding. These parts of the Act are central to its design and operation, and all the Act’s other provisions would not have been enacted without them. In our view it must follow that the entire statute is inoperative.

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15 Comments

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15 responses to “The Architecture of a Republic: Scalia’s Dissent to Obamacare

  1. Great post! Earlier tonight I mentioned my own fondness for Scalia opinions in a post. Glad to see someone else enjoying his talent straight from the document itself.

  2. Lawrence Barry

    Scalia must be so frustrated being surrounded by such imbeciles on the court. Thomas and Scalia are the 2 biggest defenders of individuals against the power of the state. yet they are demonized as fascist hacks. The whole reality has been flipped upside down.

    • To pull a worn movie line, “YOU CAN’T HANDLE THE TRUTH!” Not you, but you know what I’m saying… truth and logic scare people who believe themselves more than they believe a higher authority.

    • Lawrence, a fair reading of, for example, Justice Ginsburg’s opinion wouldn’t conclude that she’s an imbecile. Read through the eyes of Scalia, she looks to the Constitution “as though it is an enumeration of those problems that the Federal Government can ad­dress.” She calls the majority’s reading of the Commerce Clause as “stunningly retrogressive” and as a “crabbed reading of the Commerce Clause [that] harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy inthe interest of those who labor to sustain it.” These kind of quotes tend to support Scalia’s reading and certainly offer a different vision of the Constitution.

      Certainly governmental “help” tends to increase the power of government and decrease personal liberties. There’s a right balance there somewhere and I think Scalia’s reading – in deference to the intended design of our republic – gets it right.

  3. frank watanabe

    Does anyone else think it’s strange that Scalia has re-purposed Federalist #33 in his dissent? The quote he chose, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane’? Was from Hamilton’s defense of the government’s power to tax. Hamilton cited these words as his opponents, and then declared them exaggeration. Scalia is diametrically opposed to Hamilton, so why use his words?

  4. Richard

    I was amazed to read several recent editorials in the WaPo demanding that Scalia resign because of his dissent on the Arizona immigration law case. Amazing. http://www.washingtonpost.com/opinions/ej-dionne-jr-justice-scalia-should-resign/2012/06/27/gJQApkO06V_story.html

  5. TV

    Best full statement…
    “…Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.”

    “That clear principle carries the day here. The striking case of Wickard v. Filburn, which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

  6. paddy

    Quite convinved that this comment will be deleted: do you realize at all that you are speaking to yourselves?

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