Winning the Battle, but Losing the War (for Expansive Federal Government Power)?
By Professor Nadine Strossen

The Court’s decision is hard to summarize in a simple headline because of its multiple holdings, which were supported by majority votes comprised of differing subsets of the Justices. To be sure, the bottom-line result of the Court’s central holding was to sustain Congressional power to enact the Affordable Care Act’s minimum coverage requirement. However, the Court’s overall analysis and multiple subsidiary holdings, viewed as a whole, actually endorse a notable reining-in of the federal government’s power in several respects. This was underscored by the partial dissent that Justice Ginsburg authored on behalf of the Court’s four more “liberal” Justices, objecting to these holdings.

The decision’s cutbacks on federal power were reflected in the following holdings, which were supported by the Court’s more “conservative” Justices:

• The Court rejected the central rationale of the U.S. and other proponents of the Act -- that Congress had the power to pass it under the Commerce Clause and/or the Necessary and Proper Clause.
• For only the third time since 1937, the Court held that Congress had exceeded its Commerce Clause power.
• The Court substantially cut back on the very broad construction it has consistently given to the Necessary and Proper Clause, including in recent rulings. 
• The Court partially invalidated the “Medicaid expansion” provision – which grants additional federal funds to states to expand Medicaid coverage, on the condition that the states comply with certain federal requirements for such coverage – holding that this provision exceeded Congress’s power under the Taxing and Spending Clause. The Court has repeatedly held that Congress may condition its financial grants to states on a range of requirements. While the Court has in the past nodded to the possibility that some conditions might hypothetically be so onerous as to overstep Congress’s power and unduly constrain states’ autonomy, this was the first time the Court has ever struck down any federal funding program on that basis.

In sum, the above holdings explicitly reined in Congress’s powers under three separate power-granting constitutional clauses: the Commerce Clause, the Necessary and Proper Clause, and the Taxing and Spending Clause.

Nor are these power-restricting holdings likely to be offset, in terms of federal power in future contexts, by the Court’s holding that the minimum coverage provision was authorized by Congress’s taxing power. That’s because the Court framed this holding extremely narrowly in several ways, including by anchoring it to the specific facts of this unique case.

In short, while the Court did uphold federal power in this case, its specific rationales may well have a net impact of limiting federal power in future contexts.

This blog post was written for www.pointoflaw.com by Professor Strossen and is reprinted with permission.

Professor Strossen quoted in The Fiscal Times article, “Why the Health Care Mandate 'Tax' Is a Paper Tiger” on June 28, 2012.