By a narrow 5-4 majority, the Supreme Court today upheld the main provisions of the Affordable Care Act. The New York Times headline, “Health Law Stands” is likely to receive the bulk of the coverage. The decision hinged on Chief Justice John Roberts siding in part with the liberal justices. It is the “in part” that has enormous import.
Much of the debate on the bill hinged on whether the mandate for all to buy health insurance was constitutional. The Roberts opinion holds that it is… sort of. The chief argument in favor of the mandate was that the Federal government possessed this power under the broad power of “regulating interstate commerce.” Importantly, while the four liberal justices stated they would accept this interpretation, Roberts does not. Indeed, he states that such an interpretation would allow the Federal government to compel – rather than just regulate – commerce. So instead, Roberts maintains that the mandate is constitutional insofar as it is acceptable for the Federal government to exact a tax on individuals who do not buy health insurance. What is constitutional is the tax, not the mandate per se. Of course, what makes anything a mandate is that there is a punishment attached. The Roberts opinion makes it clear that the law per se does not “mandate” commercial activity – people are free to not buy insurance, and pay the tax.
I am no political reporter, but on these grounds, it will undoubtedly be very attractive for Republicans to seek to repeal the tax. But of more interest to CMTers should be Roberts’ lengthy discourse on the federal system. Roberts makes clear that he finds it perfectly acceptable for governments to mandate activity – just not the Federal government. He says:
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, “the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10. The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010).
The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000). State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10). This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.
Catholic debates over policy tend to ignore this line of argument. On this argument, it is perfectly acceptable for a given state to mandate commerce, and in fact to take many actions which may have large effects on daily life. Roberts makes it clear that anti-government libertarianism is not somehow enshrined in the Constitution, and similarly we should recognize that it is even less a feature of Catholic social teaching. On the other hand, it does suggest that progressive reform should proceed at the state level, above all. In the American context, this is very tricky – states are of greatly differing sizes, enactment of progressive policies can create destructive tax differentials and also unwanted migration, etc. But it does suggest that states are indeed “laboratories” for more active government.
UPDATE: Reading Justice Ginsburg’s lengthy and sometimes-scathing partial dissent, she confirms that the key issue is whether states can, in practice, proceed independently on this issue. She cites extensive evidence from state experiments in the 1990’s in requiring that insurers cover pre-existing conditions that such attempts are impossible without a mandate: insurers simply exit the market, because sick people can buy insurance only when they get sick. In doing so, she disputes a key premise of Chief Justice Roberts’ argument: that mandating the purchase of insurance would allow the mandating of the purchase of healthful foods (the “broccoli horror”). Insurance is simply a different kind of thing, on Ginsburg’s reasoning. Moreover, she affirms that, as with the Court’s ruling in favor of Social Security, a patchwork of different state laws would lead to the migration of the indigent to particular states, and therefore would likely deter states from enacting coverage laws. (That said, states could do exactly what Massachusetts did, which is mandate coverage and extend it, although she cites significant data that suggest Massachusetts has thereby been burdened by sick people from other jurisdictions.)
But she extends this logic to explain why health care in general is a different kind of thing: because Federal and state laws compel providers to give care, regardless of ability to pay. This is simply not true of other purchases (cars are the main example used by both). The requirement to provide care creates a unique situation, whereby all citizens have good reason to participate in the risk and cost-sharing involved in the practice of insuring.
Justice Ginsburg’s dissent nicely illuminates the complexity of subsidiarity. But its entire tone also indicates the fundamental difference in the jurisprudence of the Court. For Ginsburg, unlike for Roberts, one must actually look at and make a reasonable judgment about practicality. She assails Roberts’ attempt to defend the distinction between “regulating” and “compelling” commerce. In theory, Roberts’ argument is an elegant one. But in practice, Ginsburg explains the messiness. Perhaps the moral of the story will end up being that the ACA, in its attempt to provide nearly-universal coverage without the obvious solution (Medicare for all), is unworkable.
I find it problematical to analyze the dynamics of American Federalism from the perspective of the Principle of Subsidiarity.
Federalism comes in a variety of flavors i.e.American, German, Canadian, Australian,etc.The citizens of these nation states have determined that it is prudent to divide the powers of THE STATE between national governmental institutions and regional/local institutions. Both institutional levels are given given priority in exercising specific STATE functions; they also exercise shared responsibilities over other functions. The usual legal terminology is that one level has “delegated powers” (In the US, the National Government) and the other level has “reserved powers” (the 50 State Governments.) But in Canada the “reserved powers” are national and the “delegated powers” are Provincial. Whatever the legal formula, STATES using federalism as a governing mechanism experience on-going debate as to the proper allocation of responsibilities based on questions of efficiency, accountability, security of individual rights, historic tradition, etc.
I understand the Principle of Subsidiarity to apply to the relationship between THE STATE and the associations/institutions of Civil Society. In my judgment ,when we analyze the on-going tension within American federalism” using the language of Subsidiarity, we risk sacrificing the radical critique of U.S. society that is inherent in that principle.
At best, US Federalism is a dim expression of the Principle of SubsidiarityLite. The Principle of Subsidiarity should rightly call attention to relationship between THE STATE (National and “State’) and the association/institutions of American Civil Society.
IMO, we Americans are reluctant to either use the term–or recognize the reality of–“Civil Society.” But that is a topic for another post!
Thanks for the comment. I think this is a fair point to make – it is certainly the case that subsidiarity means, for example, the state should not assume functions more properly carried out by the family (to use the obvious example). On the other hand, in Caritas in Veritate #57, it is stated: “the governance of globalization must be marked by subsidiarity, articulated into several layers and involving different levels that can work together. Globalization certain requires authority…this authority, however, must be organized in a subsidiary and stratified way….” If the word “authority” here means something like juridical authority, it seems as though the pope is speaking about different state and state-like entities, AS WELL AS the difference between non-governmentals, firms, households, and governments.
David– Thank you for referring me to Pope Benedict’s Caritas in Veritate
Benedict XVI does apply the Principle of Subsidiarity in urging the establishment of “a true world political authority” (#67) which would also respect the autonomy of nation-states. But Benedict states that: “Subsidiarity is first and foremost a form of assistance to the human person via the autonomy of intermediate bodies.” (#67) He devotes most of Caritas in Veritate advocating an expanded role for non-government actors—labor unions, financiers, investors, credit unions and micro-financing, consumer associations—in transforming our shared global life.
On the issue of Subsidiarity and US Federalism: I continue to be agnostic about utilizing the “Principle of Subsidiarity” in analyzing our Federal System.
Subsidiarity is often interpreted as highlighting:
(a) “Localism” –that government is best which is closest to the people and
(b) “Functionalism”–national problems should be solved nationally; local problems should be solved locally.
I would suggest that your analysis of the “health care” decision illustrates that in the practice of US Federalism, “localism” (Judge Roberts) and “functionalism” (Judge Ginsburg) exist in inevitable tension. We fought a Civil War over the issue of Federalism—but we failed to come up with a formula for balancing “localism” and “functionalism.” Each generation continues the debate by appealing to tradition, Supreme Court decisions, evolving political ideologies — and elections.
However, it could be argued that we should continue to analyze US Federalism through the lens of the “Principle of Subsidiarity” if only to identify anomalies and logical inconsistencies in our practice.
I am a bit late to this game, but have a couple of insights on subsidiarity.
The principle’s pre-Rerum Novarum origins actually shed a lot of light on it, as it is essentially a legal or even political-juridical principle that the church adopted to deal with the looming threat of power secular nation-states. Following an essentially common law jurisprudence, the prinicple of subsidiarity contained a legal-political logic that locates “ruling authority” in the community, and verified via the existing written legal codes. Precedence in conflicting cases always goes to the oldest and most local written legal document. Church figures in the 19th century picked up on this to counter what was seen as the “modern liberal” vesting of authority in the newest and most general legal document…. namely the new national constitutions as exemplified by the Code Civil. And Federalism, even though it respects local authority in the states, is a function of the constitution and thus a centrally focused power. Thus I see Federalism and a Subsidiarity logic as being in some ways counter systems. That said, the description of the Roberts decision in David’s blog post seems to show that Roberts would be “at home” in 19th century Catholic version of Romantic jurisprudence.
The legal background to subsidiarity is important to understand because it underscores that the principle is not just a general rule, or a practical rule of thumb. It does not just describe, to use the definition here, a. the “best government” or b. how problems “should be solved locally”. Though that is the murky way the principle is used. Rather, the principle of subsidiarity reflects a conviction that authority comes from the community, and that law should reflect that. More, the principle highlights that when the law is too general, it is not only a practical problem, it is a problem of legitimacy… and thus a deficieny of justice.