All of the opinions, concurring and dissenting, run to 193 pages. That’s a lot of pages. But you have to read only as far as page 20 to get this from Chief Justice Roberts: “Every day individuals do not do an infinite number of things.”
I know the ultimate disposition of the Patient’s Protection and Affordable Care Act (I call it Pea-pack, possibly because of my time working pea-pack for the Del Monte Canning Company) is an important public matter and I want to think seriously about it eventually, but right now, I am thinking seriously about introducing my Fall term Political Psychology class with this quote from Chief Justice Roberts.
That is the question Chief Justice Roberts invites us to consider. The actual heart of his opinion is that Congress does have the authority to punish people who do not purchase health insurance because this punishment—“a fine” in some readings—is actually “a tax” and everyone agrees that Congress has the right to tax.
That wasn’t the reasoning the Obama administration really wanted. The administration “played” the authority to tax argument the way a good coach plays a deep bench. The “authority to tax” argument was a substitute who just happened to be on the floor when somebody has to take the last shot. The starting players for Coach Obama were: a) health insurance affects interstate commerce and Congress has the right to regulate interstate commerce and b) even if it didn’t have that direct right, there is the justly famous “elastic clause,” which says that Congress has the right to take actions that are only instrumentally authorized, i.e., you have to be able to do these things (not mentioned in the Constitution) so you can accomplish those things (directly authorized by the Constitution). Those two—the interstate commerce clause and the elastic clause—were the starting players. One of them was supposed to have the ball.
But with the clock winding down, the ball was in the hands of the sub—the power to tax—and he is the player who took the shot that won the game. On the other hand, David, the shepherd boy who killed Goliath, was a sub as well and he too was saved, as one wag put it, by his outside shooting.
The Obama administration’s real case—not the one they made to the court—is that you cannot have an insurance system that covers (nearly) everyone and that is (mostly) affordable without having everyone in the insurance pool. That’s what the individual mandate is for. But Chief Justice Roberts, who, in an alternative metaphor, runs a swimming pool, ruled that the lifeguard has the authority to get everyone out of the pool, but not the authority to get everyone into the pool.
When he said, “Every day individuals do not do an infinite number of things,” the thing he had in mind was buying healthcare insurance. Congress has a lot of authority over the things people do, he argued, but no authority over what people don’t do. So the interstate commerce clause gives the Congress the right to “regulate” commerce, but not to “require” commerce. Roberts ruled that “not buying healthcare insurance” was not an activity; it was an inactivity. Therefore regulating it was not regulating commerce, but demanding commerce.
One of the commentators pointed out that with this judicial confirmation, the U. S. joined every other rich country in the world in requiring healthcare coverage. Everybody says that a health insurance “pool” is not going to work unless everyone—those who currently need care and those who currently do not—is in it. That’s really the whole case as a policy matter.
The Supreme Court’s job is to say whether this job can get done with the tools (constitutionally) available. It’s one thing to say you really have to have a house and another to say that the materials and the equipment to build the house are on site and ready for use. The Obama administration said we have to have the house. The majority of the court said that the tools needed to build it are available. The minority of the court said that the tools were not available and we would have to find a way to do without the house.
Next they’ll be saying we will have to do without the Senate.
 I encountered this logic late in the 1970s when I began wearing orthotics in my running shoes and therefore had to begin wearing socks—something I had refused to do up to that point. And since I was wearing only one orthotic, I wore only one sock and people would say, “Look. You have one sock on and one sock off.” On my best days, I would stop and invite this particular observer to tell me just how he knows how many socks I am not wearing.