I'm glad Chief Justice Roberts joined Justices Ginsburg, Breyer, Sotamayor, and Kagan on upholding the mandate (and ACA) under the taxing power. But Justice Ginsburg had some real concerns about the Roberts opinion on the commerce and necessary and proper clauses (agreeing with by Justices Scalia, Kennedy, Thomas, and Alito) and an implicit warning of potential future problems:
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See, e.g., Carter Coal Co., 298 U. S., at 303–304, 309–310; Dagenhart, 247 U. S., at 276–277; Lochner v. New York, 198 U. S. 45, 64 (1905). THE CHIEF JUSTICE’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, see post, at 4–16, bear a disquieting resemblance to those long-overruled decisions.
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend "for the . . . general Welfare of the United States." Art. I, §8, cl. 1; ante, at 43–44. I concur in that determination, which makes THE CHIEF JUSTICE’s Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.
S.Ct. Opinion on ACA (Justice Ginsburg, joined by Justices Sotomayor, Kagan and Breyer)
We won the battle, but it is unclear how the Commerce Clause and Necessary and Proper Clause holdings will impact lower court rulings on other legislation in the future. They limited the scope of the Commerce Clause, which conservatives have sought for a long time, but that impact may be more theoretical than actual. Chief Justice Roberts and the conservatives appear also to have limited the Necessary and Proper Clause. Justice Ginsburg again:
Lacking case law support for his holding, THE CHIEF JUSTICE nevertheless declares the minimum coverage provision not “proper” because it is less “narrow in scope” than other laws this Court has upheld under the Necessary and Proper Clause. Ante, at 29 (citing United States v. Comstock, 560 U. S. _ (2010); Sabri v. United States, 541 U. S. 600 (2004); Jinks v. Richland County, 538 U. S. 456 (2003)). THE CHIEF JUSTICE’s reliance on cases in which this Court has affirmed Congress’ “broad authority to enact federal legislation” under the Necessary and Proper Clause, Comstock, 560 U. S., at _ (slip op., at 5), is underwhelming.
Nor does THE CHIEF JUSTICE pause to explain why the power to direct either the purchase of health insurance or, alternatively, the payment of a penalty collectible as a tax is more far-reaching than other implied powers this Court has found meet under the Necessary and Proper Clause.
snip
In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts. How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction THE CHIEF JUSTICE, in effect, provides lower courts: You will know it when you see it. It is more than exaggeration to suggest that the minimum coverage provision improperly intrudes on “essential attributes of state sovereignty.” Ibid. (internal quotationmarks omitted).
S.Ct. Opinion on ACA (Justice Ginsburg, joined by Justices Sotomayor, Kagan and Breyer)
Justice Ginsburg sees the possible laying of groundwork to restrict future legislation.
But those battles are in the future. Today is a good day.
Update I: Here is how it lined up.
ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part,and dissenting in part, in which SOTOMAYOR, J., joined, and in whichBREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.
There are 5 votes implictly for the Roberts opinion in III A and B (Commerce Clause and N & P clause) from the 4 dissenters.