Justice Ruth Bader Ginsburg joined the Supreme Court majority in upholding the overhaul of the country’s health-care system. She concurred in the compromise drawn by John Roberts, the chief justice stepping back from the partisan brink, crafting victories for both sides, in no small way seeking to protect the reputation of the high court.
Yet read Ginsburg’s concurring opinion, and you catch the distinct flavor of a dissent. She was in the minority, rejecting what she described as the court’s “stunningly retrogressive” interpretation of the Commerce Clause.
Ginsburg captures clearly just how far the court went in abandoning precedent. If the survival of the individual mandate to purchase health insurance has been the prime focus since the ruling, it is worth attending to the further fallout. The court’s step back invites real concern about making more difficult the addressing of national problems.
Five of the nine justices embraced the notion that Congress cannot compel people to become active in commerce by purchasing a product. They see a line between active and inactive, or “doing nothing,” as the chief justice put it. Roberts argues that “the power to regulate assumes there is something to be regulated.”
Well, there is something, Ginsburg counters. She relays how those without insurance coverage have a striking impact on the market. She notes that more than 60 percent of the uninsured visit a doctor’s office or emergency room each year.
The uninsured often are “free riders,” others picking up the cost of their care, the average family premium $1,000 a year higher as a result. Ginsburg cites a study revealing that when hospitals divert time and resources to caring for the uninsured, the quality of care for those with insurance suffers significantly.
So, the uninsured aren’t “doing nothing.” All the new law seeks is an improved method for financing health care, one that helps, for instance, in addressing glaring inequities for those with pre-existing conditions. Ginsburg shows how the power to act resides in the broad authority of Congress to regulate interstate commerce, affirmed by many court rulings in the past.
In 1942, the Supreme Court went a long way in establishing the parameters of federal power. It held that federal law could define how much wheat a farmer could grow and assess a penalty for exceeding the amount.
A unanimous court ruled: “Even if an appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Ginsburg fills out the court’s thinking then. She notes that “the stimulation of commerce” and “forcing some farmers into the market to buy what they could provide for themselves” were deemed “valid means” of regulation.
The ruling has been at the foundation of national policy-making, in tune with the vision of the Founders, after their frustration with a loose confederation of states, and the increasing complexity of today’s economic and social challenges.
Ginsburg needles the majority. She points to the novelty of limiting regulation to those actively engaged in commerce. She adds that the concept cannot be found in the Constitution and, more, for the Founders, regulate meant, among other things, “to require action.”
For the chief justice and his allies, allowing the individual mandate under the commerce authority amounts to granting Congress unchecked power. What next, the question echoes, vegetarian nation?
Don’t be silly, Ginsburg responds. Limitations already exist. Congress must stick to interstate commerce, its actions requiring a rational basis and a reasonable connection. It cannot regulate noneconomic activity, the court not too long ago striking down laws on this basis.
Then, there is the unique quality of the health-care market, practically everyone involved, illness striking unpredictably, even for the young, free riders driving up costs.
Finally, there is political reality. Ginsburg points to the uproar over the individual mandate and reasons: No way Congress would risk the public outrage that would follow a proposal to order the purchase of broccoli, or anything like it.
A year ago, in a concurring opinion, Judge Jeffrey Sutton of the federal appeals court in Cincinnati, a conservative in high standing, joined in upholding the individual mandate under the commerce power. He observed that the Supreme Court has “considerable discretion in resolving this dispute.” He added that “does not free lower court judges from the duty to respect the language and direction of the court’s precedents.”
His opinion offers another measure of how far the court has traveled. Now the arguments begin, the way open to litigation, clashing over the definitions of inactive and active participation in commerce. As Justice Ginsburg explains, “these line-drawing exercises” have proved “untenable” in the past.
Thus, the court gave Congress, the country’s elected representatives, necessary room to deal with big questions — that is, until this Supreme Court sounded a retreat.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at mdouglas@thebeaconjournal.com.
