Did Chief Justice Roberts Craft a New, More Limited Commerce Clause?

In a word: No.  Or, even if yes, just by a hair--by adding just a footnote to the current doctrine.  Here's why.

Let's start with some background on the health care case.  While a five-Justice majority on the Supreme Court, led by Chief Justice Roberts, ruled yesterday that Congress could enact universal coverage in the Affordable Care Act under its taxing authority, a different five-Justice majority ruled that it couldn't enact it under the Commerce Clause.  Chief Justice Roberts found himself--or, more precisely, placed himself--with each majority.

Chief Justice Roberts wrote the opinion of the Court on the taxing authority.  His opinion on this point was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.

He also wrote an opinion on the Commerce Clause.  But he only wrote for himself.  While Justices Scalia, Kennedy, Thomas, and Alito joined him in the result--that Congress exceeded its Commerce Clause authority in enacting universal coverage--those four wrote a decidedly distinct opinion, styled a dissent, and did not join Chief Justice Roberts's opinion on this issue.  The Chief's opinion on the Commerce Clause is his own.

In sorting this out, as an initial matter, we need to know whether this single-Justice opinion, even if written by the Chief, is controlling.  There are two issues.

First, the Marks rule.  This rule, from Marks v. United States, says that when a majority on the Court agrees in a result, but cannot agree on a reason, the guiding opinion for future cases is the narrowest opinion on the winning side.  In the language of Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."

Here, Chief Justice Roberts wrote a slightly narrower opinion on the Commerce Clause than the dissenters.  But just barely.  They all said that Congress lacks authority to regulate inactivity (more on this below), and that therefore Congress lacks authority to require individuals to purchase health insurance.  This just-barely-narrower opinion, along with the Court's own characterization of Chief Justice Roberts's opinion as "an opinion" and the dissenters' opinion as "a dissenting opinion," Chief Justice Roberts's opinion, so far, is almost surely the guiding opinion under the Marks rule.

But there's another issue.  It's not clear that Chief Justice Roberts's opinion on the Commerce Clause is anything more than dicta.  In other words, Chief Justice Roberts's ruling on the Commerce Clause isn't necessary to the Court's ruling upholding universal coverage under the taxing authority.  Chief Justice Roberts argued in Section IIID of his opinion--again, writing just for himself here--that his analysis of the Commerce Clause was necessary, because "the statute reads more naturally as a command to buy insurance than as a tax," and "[i]t is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question."  But this is an exceedingly weak justification.  There's nothing that says that an argument presented alternatively must be addressed in the order presented.  (Here, the government argued first that the Commerce Clause supported universal coverage and second that the taxing authority did.)  Indeed, the better course--the judicial minimalist course--would be not to address it.

More importantly, Chief Justice Roberts's explanation gets only one vote.  Moreover, it's not necessary to any other Justice's analysis--even the dissenters.  (Why?  Because the dissenters object to everything.  They don't need to explain why they address the Commerce Clause--they have to address it as an alternative argument, because they also rule universal coverage unconstitutional under the taxing authority.)  Thus, it is not the holding of the Court on its own (because it gets only one vote) and it is not the guiding holding of the case under Marks (because it reflects the ruling of no other Justice).  If Chief Justice Roberts's weak explanation isn't the law, it seems, his analysis based upon that justification is also highly suspect.

If all this is right, then we have a highly fractured Court with no controlling opinion on the Commerce Clause.  If that's right, then the Commerce Clause hasn't changed.

But let's assume that's not right--because, in fact, courts will probably treat Chief Justice Roberts's opinion on the Commerce Clause as guiding.  Does the substance of his opinion limit the Commerce Clause?

The answer: Yes, but just by a hair.  Chief Justice Roberts wrote that the Commerce Clause doesn't allow Congress to require activity where there is no existing market.  In other words, Congress can't compel individuals to act without a background interstate market. 

But Chief Justice Roberts was also very careful to write that Congress has never done this before.  (Indeed, that's his stated reason to "pause to consider the implications of the Government's arguments."  Op. at 18.)  Agree or disagree with that conclusion, by its own terms it means that this is an exceptional, outside case.  That's the same thing that the government has said all along, although in different terms: the health-care market is different.

If everybody agrees that this is an exceptional case, Chief Justice Roberts's restriction on the Commerce Clause--that Congress can't regulate inactivity without a background interstate market--applies only in the rarest of circumstances.  Other than the very unusual hypos the Court tested at oral argument--a market for burial services (justifying a requirement to buy burial insurance), a market for emergency services (justifying a requirement to buy a cell phone to dial 911), and, of course, a market for food (justifying a requirement to buy broccoli)--this restriction will have no effect on congressional authority.

Indeed, even Chief Justice Roberts wrote--citing and reaffirming even those cases that reflect the broadest Commerce Clause power we've seen--that it never has had an effect on congressional authority. 

The only workable rule in the opinion is that Congress can't regulate inactivity when there's no background interstate market.  But by the Chief's own reckoning, this will only apply in the rarest of cases.

In other words: Chief Justice Roberts may have restricted the Commerce Clause, but just by a hair.  The restriction will be a mere footnote when we teach the modern doctrine.

But some have argued that the spirit of the opinion (if not the law of the opinion) reflects a restricted authority.  The bottom-line holding belies this: Congress has authority to enact universal coverage.  The aggregate weight of congressional authority hasn't much changed, even if it shifted a little from commerce to taxation.

In the end, Chief Justice Roberts's opinion on the Commerce Clause will make little difference.  There's a remote chance that it won't emerge as the controlling or guiding opinion; but even if it does (as seems highly likely), it just doesn't change the doctrine or the spirit all that much.

SDS