It's interesting to me that Lemieux gives almost no attention to Chief Justice Roberts,
Ruling that the mandate can be severed from the rest of the ACA would appeal to Kennedy and Roberts for two reasons: They like “minimalist” opinions that don’t go beyond what is necessary, and striking down the relatively unpopular individual mandate would probably not attract a great deal of public opposition.Of all the Justices, Roberts has the most at stake here. You can view any other sitting Justice as a partisan, a hack, an incompetent, or the greatest legal genius on the court, but it is unlikely that any other sitting Justice will ever gain the title of "Chief Justice". Roberts is young and is apt to be on the court for decades to come. The same political considerations that led to his being nominated and made Chief Justice are not going away - his successor is apt to also be a new or newer, young appointee, who is anticipated to support the then-President's agenda for decades to come.
The decision in this case will be a large, if not overshadowing, part of Roberts' legacy. Will he be viewed by history as an activist, partisan hack who trashed health care reform, as a uniter who led the court through a difficult case and engineered a 9:0 (or 7:2) majority, or as the guy who oversaw a messy plurality that required years of additional litigation to parse. Lemieux doesn't actually state that there will be a clear majority opinion, but he also doesn't discuss the possibility of a plurality, possibly 4:3:2, or 4:3:1:1, or perhaps even more fractured with Justices joining parts of various opinions while dissenting from other parts and also writing their own dissents or concurrences.
Although some in the Republican Party appear to believe that the total failure of healthcare reform, and even the notion of universal access to health insurance, is misguided, the fact is that most Americans want decent health insurance. While shooting down the ACA may provide the "anti" faction of the Republican Party with a "feel good moment", it puts the nation right back on track to the disaster reform was hoping to avert - continued health insurance premium increases of 8% - 15% per year, rendering health insurance unavailable to more and more Americans. Strike the ACA and its various cost control measures and you place responsibility for that probable future squarely at the feet of the Supreme Court and the Republican Party. If you assume that Roberts is motivated either by his own legacy or by a wish to advance the Republican Party (as opposed to his personal legal philosophy that largely overlaps with the Republican Party's agenda), that has to give him pause.
The issue here goes beyond the mere appearance of creating a new constitutional doctrine in order to strike down a major piece of legislation, passed after extensive debate and controversy. Acceptance of the "action" / "inaction" distinction creates a line of argument that can be raised in pretty much any Commerce Clause case, including those that have largely been viewed as settled. Lemieux references the opinion of Laurence Silberman,
We think the closest Supreme Court precedent to our case is Wickard v. Filburn, 317 U.S. 111 (1942). There, a farmer ran afoul of his allowed wheat acreage under the Agricultural Adjustment Act of 1938 by growing additional wheat, not for sale, but to feed his family and his livestock. Id. at 114-15, 118- 19. Filburn argued that the Act was unconstitutional as applied to him because he was not using the excess wheat for any activity in the interstate market. The Supreme Court unanimously rejected this claim. It held that even growing wheat for personal consumption, not for sale in any market, could affect the national price, and therefore was within Congress’s commerce power. Id. at 127-28. This conclusion was not only because his wheat might be diverted into the national market, as was recognized in Gonzales v. Raich, 545 U.S. 1, 18-19 (2005). Justice Jackson said even “if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.” Wickard, 317 U.S. at 128 (emphasis added). Justice Jackson thus recognized that the Act “force[d] some farmers into the market to buy what they could provide for themselves.” Id. at 129. Although a regulation limited the size of the farms covered, the logic of the opinion would apply to force any farmer, no matter how small, into buying wheat in the open market. See Raich, 545 U.S. at 20. Wickard, therefore, comes very close to authorizing a mandate similar to ours, at least indirectly, and the farmer’s “activity” could be as incidental to the regulation as simply owning a farm.I recognize that the small faction of the political right that would love to see all of the New Deal decisions reversed would rejoice at the idea of the Supreme Court revisiting that era's Commerce Clause cases, but the implications of such a decision, both in terms of political consequence and judicial economy, are enormous.
Indeed, were “activities” of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such “activity.” For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future. And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. Thomas More, 651 F.3d at 560-61 (Sutton, J., concurring). The Supreme Court has repeatedly rejected these kinds of distinctions in the past–disavowing, for instance, distinctions between “indirect” and “direct” effects on interstate commerce–because they were similarly unworkable. See Wickard, 317 U.S. at 119-20; see also Lopez, 514 U.S. at 569-71 (Kennedy, J., concurring). [footnote omitted]
I would like to tell you that none of this matters, or none of this should matter, but I would be wrong on both counts. Chief Justices (really, all of the Justices) do consider their legacies. And it is appropriate for the Court to weigh the impact of a decision on society, and the availability of remedies at the ballot box, when asked to invent new rules of law in order to strike major pieces of legislation. Chief Justice Warren knew the importance of public perceptions when he engineered a unanimous decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). If he wants to demonstrate that he was a good choice for his position, Roberts would do well to work behind the scenes to obtain an opinion that is supported by a clear majority of the Court and rests firmly on established precedent.