The beauty of SCOTUS rulings is that, sometimes, various Justices can take divergent paths and arrive at the same decision. The ACA opinion is one of those rulings.
Justice Ginsburg (full disclosure: I am a bit of a Ruth Bader Fanboyberg) decides to begin with a dissertation on why Chief Justice Roberts is wrong about the commerce clause. After a brief preamble, she drops this:
THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. . . . It is a reading that should not have staying power.This is a woman who knows how to craft a sentence. <3
In plain English: Remember when we let children work in textile mills? Or when labor organizers clashed with the police and we whitewashed it? That's my stuff. She cites to this case. She's the one who herds precedent, I am just pointing out that she's describing Roberts' view as antiquated.
Justice Ginsburg does a great job of laying out the societal issue: people are getting hosed by the current system, free riders increase the cost for everyone, many can't or won't get insurance due to cost, etc. She drops the "in sum" bomb:
In sum, Congress passed the minimum coverage provision as a key component of the ACA to address an economic and social problem that has plagued the Nation for decades: the large number of U. S. residents who are unable or unwilling to obtain health insurance. Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it. Reviewed with appropriate deference, the minimum coverage provision, allied to the guaranteed-issue and community-rating prescriptions, should survive measurement under the Commerce and Necessary and Proper Clauses.This is just the conclusion of her summary of her argument. It's also a tribute. SCOTUS opinions tend to be the Tenacious D songs of jurisprudence in this regard.
Justice Ginsburg notes that the Framers intended the Constitution to be a living document that changes with the times. This concept is not inconsistent with, well, anything. So written:
The Framers understood that the “general Interests of the Union” would change over time, in ways they could not anticipate. Accordingly, they recognized that the Constitution was of necessity a “great outlin[e],” not a detailed blueprint, see McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), and that its provisions included broad concepts, to be “explained by the context or by the facts of the case,”Letter from James Madison to N. P. Trist (Dec. 1831), in 9Writings of James Madison 471, 475 (G. Hunt ed. 1910).“Nothing . . . can be more fallacious,” Alexander Hamilton emphasized, “than to infer the extent of any power, proper to be lodged in the national government, from . . . its immediate necessities. There ought to be a CAPACITY to provide for future contingencies[,] as they may happen;and as these are illimitable in their nature, it is impossible safely to limit that capacity.” The Federalist No. 34, pp. 205, 206 (John Harvard Library ed. 2009). See also McCulloch, 4 Wheat., at 415 (The Necessary and Proper Clause is lodged “in a constitution[,] intended to endurefor ages to come, and consequently, to be adapted to the various crises of human affairs.”).This argument lays the foundation for allowing the ACA under Congress' Commerce Clause powers. Since the Constitution was initially framed, we've had some serious developments in our society (e.g. the ability to provide health care to the many). We need to check that before wrecking that, as it were.
Justice Ginsburg makes a spirited and correct argument that health care is a big fucking deal. She also describes how free riders on the health care system increase costs for everyone. This truth allows her to get in line with Roberts, who wants to approve the ACA under the "taxation power" spin.
RBG also takes issue with Robert's analysis of the commerce clause issue.:
This argument has multiple flaws. First, more than 60% of those without insurance visit a hospital or doctor’s office each year. See supra, at 5. Nearly 90% will within five years. An uninsured’s consumption of health care is thus quite proximate: It is virtually certain to occur in the next five years and more likely than not to occur this year.The argument is a solid counter to Robert's "you can't regulate inactivity" argument. The majority opinion makes a reference to someone who purchased a car two years ago -- that person is not in the car purchasing market by virtue of past conduct. However, RBG makes a valid distinction here -- car purchases are planned, many health care needs are not. It's the nature of health care. People don't schedule heart attacks and breast cancer.
Justice Ginsburg points out that the majority's opinion does not give enough deference to Congress, in particular in its Commerce Clause analysis. Generally, the SCOUTS has applied the "rational basis" test for evaluating whether an act of Congress over-reaches its power under the Commerce Clause. She points out that Congress had a rational basis for concluding that uninsured people affect interstate commerce. People get sick or injured while out of town, they cross state lines for medical care, etc. Free riders cost everyone more money as costs increase to cover those who can't/don't pay.
The act of not having insurance is just as significant as having it. In Justice Ginsburg's eyes, not buying insurance is an economic choice that Congress can regulate:
Given these far-reaching effectson interstate commerce, the decision to forgo insurance ishardly inconsequential or equivalent to “doing nothing," it is, instead, an economic decision Congress has the authority to address under the Commerce Clause.See supra, at 14–16. See also Wickard, 317 U. S., at 128 (“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.")RBG then proceeds to directly indict Robert's logic in truly awesome fashion:
Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, THE CHIEF JUSTICE relies on a newly minted constitutional doctrine. The commerce power does not, THE CHIEF JUSTICE announces, permit Congress to “compe[l] individuals to become active in commerce by purchasing a product.”
THE CHIEF JUSTICE’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation. See infra, at 23–27. But even assuming, for the moment, that Congress lacks authority under the Commerce Clause to “compel individuals not engaged in commerce to purchase an unwanted product,” ante, at 18, such a limitation would be inapplicable here. Everyone will, at some point, consume health-care products and services. See supra, at 3. Thus, if THE CHIEF JUSTICE is correct that an insurancepurchase requirement can be applied only to those who“actively” consume health care, the minimum coverage provision fits the bill.I'm going to call this the inevitability argument. It's a great counter to Robert's car analogy. There are people who will never own a car. They live in a major city, use public transit, etc. EVERYONE is going to use health care services at some point in time. You're born -- health care services are likely involved. You die -- there's probably a doctor in there too. Somewhere in between, you will likely see a doctor. It makes sense, and is easier to justify than the taxation power argument.
She also accuses Roberts of legislating from the bench because it its Congress's job to determine the market it seeks to regulate, not the Court's. Given this, she argues that isolating the health care market to this very instant is beyond the Court's power. Congress can look to long-term market effects and regulate those as well.
RBG also dismantles the "broccoli theory" in splendid fashion:
The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged topay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.
That's right. Health care is not like cars or broccoli. This is what I call exposing a disingenuous argument. She also attacks Roberts for asserting that the Commerce Clause only allows the regulation of things that already exist. As Justice Ginsburg aptly points out, both the interstate health care and health insurance markets existed before the ACA was enacted.
To be honest, the entire concurring opinion is full of great material. I won't touch on her arguments about the necessary and proper clause in this post, there's too much awesome there. Moreover, you don't need to touch on necessary and proper after reading her dismantling of Justice Robert's ruling on the Commerce Clause.
When all is said and done, Justice Ginsburg's concurring opinion is a great example of why it is important to read every portion of a SCOTUS ruling. While not binding case law, her read of the Commerce Clause is highly persuasive. The opinion also points out some of the dangerous precedents that may be set by the logic of Chief Justice Roberts.