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In Health Care Decision: A Hidden Win for Conservatives?—A Commentary by Adam Cohen

The following commentary was posted on Time.com on June 29, 2012.

In Health Care Decision: A Hidden Win for Conservatives?
By Adam Cohen

Liberals have been popping corks over the Supreme Court’s decision upholding the Affordable Care Act. But one part of the ruling is taking some fizz out of the victory. While Chief Justice Roberts joined the court’s liberals in voting for the law, he gave his fellow conservatives an under-the-radar victory. The decision scales back the scope of the commerce clause, which could make it harder for Congress to pass social welfare laws in the future.

Constitutional experts handicapping the case were nearly unanimous in believing that if the law was upheld — a big if — it would be under the commerce clause. That clause — which gives Congress the power to “regulate Commerce . . . among the several states” — is the hook Congress has long used to pass everything from farm laws to airbag requirements.

But the Supreme Court took an unexpected turn. Roberts, writing for the majority, upheld the health care law under Congress’s taxing authority. The court said that Congress did not have the power to pass the law under the commerce clause. As the court saw it, forcing people who do not have health insurance to buy something is not regulating commerce — it is creating commerce.

The court’s narrow interpretation of the commerce clause did not change the outcome of this case — but it did breathe more life into a conservative campaign to rein in Congress’s powers. Conservatives have been arguing for years that a lot of things Congress does that liberals like are not actually authorized by the commerce clause.

The conservatives have had some big victories over the years. In 1995, the Supreme Court ruled that the commerce clause did not give Congress the power to pass parts of the Gun Free School Zones Act, which made it a federal crime to have guns near schools. In 2000, the Supreme Court used the same reasoning to strike down parts of the Violence Against Women Act that let women sue when they were victims of gender-motivated violence.

While much of the media frenzy over the health care decision focused on the fact that the law was upheld – and on the impact the ruling might have on the presidential race – some commentators were quick to jump on the decision’s silver lining for conservatives.

An instant analysis in Slate described the decision as “gutting” the commerce clause and declared: “Obama Wins the Battle, Roberts Wins the War.” The conservative columnist George Will, writing in the Washington Post, declared the court’s interpretation of the commerce clause to be the “Conservatives’ Consolation Prize” and a “substantial victory.”

So how big a hit is the ruling to Congress’s power? On one level, it could be modest. The court was looking at a very unusual situation. Congress does not normally require people to engage in commerce when they do not want to. Health care is rare case in which many experts argued that for the system to work, it was important that everyone – healthy as well as unhealthy – buy insurance and pay premiums.

Or it could all work out quite differently, and the court’s narrow interpretation of the commerce clause could have a bigger impact. For one thing, rulings of this sort have a way of expanding. The court could rule later on that other federal laws fit in the category it has just created. Just as important is the whole approach the court took to Congress: it was highly skeptical of Congress’s authority, and put the burden on the People’s Branch to prove that it had the right to pass laws. That skepticism could emerge again before long – and the next time, the challenged law may be struck down.

In ancient times, when King Pyrrhus suffered enormous casualties in defeating the Romans, he declared that one more such victory would undo him. The situation of liberals who support congressional power is not nearly so dire. But in a few years’ time, this week’s health care ruling may not look like quite as great a triumph as it does today.