But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war.

Indeed, it is becoming so commonplace for the federal courts to invalidate legislation that a decision like the health care one is celebrated resoundingly — even when the court has invalidated part of a law Congress passed. In just one day, the Supreme Court struck down as unconstitutional just as many laws of Congress as it did during the first 70 years of its existence: two.

Obviously, health care has captured the minds of Americans — but moments before the court announced that decision, which upheld the overall law but invalidated a requirement that states expand Medicaid coverage in exchange for federal financing, it struck down another law, the Stolen Valor Act, which made it a federal misdemeanor to lie about having received a military decoration.

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds. And it does so in the context of Medicaid, which Congress created and can alter, amend or abolish at any time. The states knew the terms of the deal when they joined — and those terms continue to be enshrined in the federal code.  This is was the first significant loss for the federal government’s spending power in decades. 

The fancy footwork that the court employed to view the act as coercive could come back in later cases to haunt the federal government. Many programs are built on the government’s spending power, and the existence of an extra-constitutional limit on that power is a worrisome development.

The government told the court that longstanding laws, like the Elementary and Secondary Education Act of 1965 and the Family Educational Rights and Privacy Act of 1974, contain clauses that condition money on state performance of certain activities. The decision leaves open the question of whether those acts, and many others (like the Clean Air Act), are now unconstitutional as well.

Even more worrisome for the federal government is the way the court reached the result it did on Medicaid. The court had to rewrite the statute to save it from a constitutional problem by eliminating the part of the law that permitted the federal government to withdraw Medicaid financing. The result, as Justice Anthony M. Kennedy warned, was effectively to leave in place a statute that Congress never enacted. (That is the same move that Chief Justice John G. Roberts Jr. employed in 2009 when he led the court to uphold the constitutionality of the Voting Rights Act.)

But there is a danger here too: that courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference.

The court employed language that could be read to suggest that whenever statutes are novel, they are unconstitutional. This atextual reading of the Constitution, odd for “strict constructionists,” may later blossom into a radical constitutional theory that could upend decades, if not centuries, of precedent, going all the way back to Chief Justice John Marshall’s famous opinion in the 1819 case McCulloch v. Maryland, which spoke of a flexible, adaptable Constitution.

Time will tell whether today’s decision foreshadows things to come. But one thing is apparent: Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether.

While Chief Justice Roberts wrote an opinion that was apolitical and deserves much praise for its statesmanship, he did so within a legal context that is becoming less and less democratic. That context is obviously not of his making, but it makes imperative a serious conversation about judicial restraint.



Neal K. Katyal, a law professor at Georgetown and a partner at the law firm Hogan Lovells, served as acting solicitor general of the United States and argued the health care cases at the appellate level.




The Bitch Is Back - Sir Elton John

I was justified when I was five
Raising Cain, I spit in your eye
Times are changing, now the poor get fat
But the fever's gonna catch you when the bitch gets back
Eat meat on Friday that's alright
Even like steak on a Saturday night
I can bitch the best at your social do's
I get high in the evening sniffing pots of glue
I'm a bitch, I'm a bitch
Oh the bitch is back
Stone cold sober as a matter of fact
I can bitch, I can bitch
`Cause I'm better than you
It's the way that I move
The things that I do
I entertain by picking brains
Sell my soul by dropping names
I don't like those, my God, what's that
Oh it's full of nasty habits when the bitch gets back