When the legal challenges to the Affordable Care Act first started taking form, the assertion that Congress did not have the power to regulate the health insurance industry under either the Commerce Clause or the Necessary and Proper Clause was largely seen as an academic argument that had percolated in law schools thanks to a robust presence of the Federalist Society. After all, how could an industry that accounts for approximately 16 percent of economic activity in this country be said not to affect interstate commerce? Of course it can be regulated. Under the even the most cynical view opponents of the Affordable Care Act peddled these arguments simply as political cover for the Court to invalidate the law since the tension between the Obama administration and the conservative wing of the Roberts Court was nearly palpable.
The Court declined the political cover, a fact I think speaks loudly to the rumors that Chief Justice Roberts was concerned about the partisanship and rancor brewing within and around the Court, and the implications of this for his legacy. But the Chief Justice hardly “joined the liberal wing” of the Court in upholding the law. In fact, his decision gives conservatives a potentially significant tool to further attack the social safety net in its limitation of the Commerce Clause. People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.