Justice Roberts surprised everybody yesterday by joining and writing the opinion for the majority in this week’s Supreme Court decision to uphold most of the Affordable Care Act (ACA). I want to suggest that his decision is to be appreciated by the progressive community not only for upholding the act but also for shifting the legal conversation.
The decision was a major step forward toward creating a more perfect union, toward helping to forge a society in which we all share obligations toward those who cannot fend for themselves, toward a vision of a just society which honors each and every person as being created in the tzelem elohim/the image of God. This experiment in democracy—in which we have given our trust and loyalty, and by way of which we have pledged to each other our lives, our fortunes and our sacred honor—has taken a major stride forward in affording tens of millions of people the ability to have health insurance and thereby health care. At bottom, upholding the constitutionality of the ACA saved lives. People who otherwise might have died, will not die because they will have access to doctors, medicines and life saving treatments.
However, the Roberts decision in my opinion also set the legal conversation about civil and human rights on a firmer moral ground. Roberts sided with the conservative wing of the court to say that the ACA was not constitutional under the commerce clause. The commerce clause, is the clause in “the Constitution [which] authorizes Congress to ‘regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Article I, sec. 8, cl. 3)” Further, and more importantly “[o]ur precedents read that to mean that Congress may regulate ‘the channels of interstate commerce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate commerce.’” (quoting from Justice Roberts’ opinion p. 4) Roberts upheld the ACA based on Congress’s power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” (U. S. Const., Art. I, sect. 8, cl. 1) Roberts interprets this straightforwardly that: “Put simply, Congress may tax and spend.” (Roberts’ opinion p. 5)
Roberts’ basic argument was that Congress may only regulate actual commerce and not force one to engage in commerce. Justice Ginsburg forcefully disputed that interpretation in her opinion. I am not a scholar of Constitutional Law and therefore cannot with any expertise weigh in on this dispute. Instead I want to suggest that Justice Roberts’ opinion can work to move the conversation around society’s obligations (as mediated through the State) to provide shelter, healthcare, education, adequate wages and so on, to a more appropriate legal space.
The commerce clause has served as the constitutional lever by which civil rights and environmental protections have been upheld. All these laws have assisted in perfecting our union and widening the scope of people who the law recognizes as the subjects of justice. However, this has come at a price. Each step forward must be grounded in an economic argument, (“Segregation is bad because it interferes with interstate commerce.”) as opposed to an argument grounded in principles of justice. (“Segregation is evil because it does not recognize that all people are equally created in the image of God, and all have equal worth.”) This monetization of our morals has a long history, perhaps, but my concern is the present and the way forward. As a result of this monetization of our morals we are not able to actually articulate the positions that we hold. All people should have access to health care not because it will end up saving the country money (which it apparently will) but because a basic necessity of being human is being healthy and therefore it is an obligation of the society to provide health care to the extent possible to every member of society.
Justice Roberts’ opinion firmly establishes Congress’ power to lay and collect taxes as the appropriate and legitimate mechanism to redistribute wealth in order to fulfill society’s obligations. The debate is no longer whether the Congressional authority to gather and distribute the necessary resources to live out our values is Constitutional. The debate is now only about what those values are and whether we have the political will to act on our values.
For now let us celebrate. Tomorrow we continue the struggle.
The full decision is available here.