State-funded lawsuits challenging the constitutionality of the Affordable Care Act (ACA) have always been a waste of taxpayer money. Even if the states are allowed to bring these lawsuits in the first place–itself a dubious proposition–the law’s opponents will have a tough time assembling the five Supreme Court votes necessary to strike down health care reform when even ultra-conservative Justice Antonin Scalia acknowledges that Congress has the power to enact laws such as the ACA.
Today, the law’s opponents lost Roberts.
In a case called United States v. Comstock, the Supreme Court upheld a federal law allowing mentally ill sex offenders to be civilly detained after they have served their sentences if they “would have serious difficulty in refraining from sexually violent conduct or child molestation if released.” Chief Justice Roberts joined the Court’s four moderates to form a majority, with Justices Kennedy and Alito each filing concurring opinions and Justices Scalia and Thomas dissenting.
So what does this have to do with health reform? In upholding the civil detention law, the Court effectively rejected right-wing claims that Congress’ powers are too small to allow it to pass the ACA. The Constitution contains an enumerated list of Congressional powers which, although quite broad, are not limitless; and the right’s principal attack on the ACA claims that the power to enact a provision requiring all Americans to carry health insurance did not make the list of Congress’ enumerated powers.
One of Congress’ enumerated powers is the power to “regulate commerce . . . among the several states,” and even Justice Scalia concedes that this power to regulate interstate commerce includes sweeping authority to enact economic regulation. Faced with such precedent, the ACA’s opponents have not made the implausible claim that health care reform does not regulate economic activity–indeed, they would have a tough time doing so, after whining for months that the ACA would regulate “1/6 of the economy.” Instead, they argue that Congress is not allowed to require Americans to purchase insurance because doing so would be an “unprecedented” means of regulating the national economy. (Their claim that such laws are unprecedented, by the way, is false.)
As today’s Comstock opinion makes clear, however, when Congress exercises one of its enumerated powers, it is free to determine how it wants to do so–even adopting an uncommon or unprecedented means of achieving a legitimate end. After Comstock, there is simply no force to the right’s claim that certain methods of regulating the insurance market beyond Congress’ enumerated powers:
We have also recognized that the Constitution “addresse[s]” the “choice of means”  “primarily . . . to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”
In other words, so long as Congress has chosen an end that is within its power to regulate the national economy, it is allowed to choose what means it wishes to employ in advancing that end. Congress unquestionably has the power the national health insurance market, so it is allowed to choose a method of doing so that conservatives don’t particularly like.
Since joining the Supreme Court in 2005, Chief Justice Roberts has bent over backwards to advance right-wing causes. He voted to give banks and drug companies sweeping immunity from state law. He opened the floodgates to unlimited corporate money in federal elections; and he even claimed that there should be no consequence when a wealth coal baron buys a judge in order to overturn an unwanted court decision. So the fact that even Roberts rejects conservative arguments against health reform should tell the state officials pushing these lawsuits to stop wasting taxpayer money on frivilous litigation.