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John Roberts on Health Care

Supreme Court Justice (nominated by Pres. George W. Bush 2005)

Can't require insurance as commerce, but ok as tax

In June 2012, Roberts upheld ObamaCare's insurance mandate--not as a penalty under the Commerce Clause, but as a TAX, which solely saved the mandate from being declared unconstitutional.

Roberts said that it was unconstitutional for Congress to order people to buy private health insurance under the Commerce Clause: "Under the government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the government would have them act."

He THEN joined the 4 liberal justices to say that the government could TAX people for not buying health insurance. He wrote, "The federal government does not have the power to order people to buy health insurance; the federal government does have the power to impose a tax on those without health insurance."

So while the $695 penalty imposed for not buying health insurance would otherwise be unconstitutional, 5 justices said they would consider the penalty a tax, which would make it constitutional under Congress's authority to tax.

Source: Last Line of Defense, by Ken Cuccinelli, p.140-142 , Feb 12, 2013

Congress can REGULATE commerce but cannot COMPEL it

In the ObamaCare ruling a majority on the court sided with the states on the Commerce Clause argument. The court said that the Commerce Clause only allowed Congress to regulate people who were currently engaged in commercial activity. In other words, the federal government couldn't force citizens to buy health insurance.

But Roberts recognized that "people, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures can readily have a substantial effect on interstate commerce. Under the Government's logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned. The Framers gave Congress the power to REGULATE commerce, not to COMPEL it, and for over 200 years, both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now. "

Source: Last Line of Defense, by Ken Cuccinelli, p.146-147 , Feb 12, 2013

ObamaCare not ok under Commerce Clause, but ok as tax

Back on March 27, Roberts and Kennedy were very skeptical of the thrust of the government's case--that the mandate was justified under the so-called "commerce clause" of the Constitution and the government's right to regulate markets--especially how it could be limited to the health care market.

The government's lawyer, Solicitor General Donald Verrilli, made a strong case for the government's taxing power. While the taxing power argument was certainly not the focus of post-oral arguments analyses, it was the one that eventually won the day--that the mandate would be administered by the Internal Revenue Service, the agency responsible for taxation. Verrilli said, "It is administered by the IRS; it is paid on your Form 1040 on April 15th," when pressed by Roberts.

Some of the toughest questioning came as it related to the president arguing the mandate was not a tax. But Verrilli countered that it's up to the court to decide what's justified under the law, not the rhetoric of politicians.

Source: MSNBC's First Read: "How Verilli Won Over Roberts" , Jun 29, 2012

OpEd: sympathetic to labeling ObamaCare unconstitutional

The Federalist Society is a powerful network of influential conservative legal scholars. So not only is it likely that Sen.Mitch McConnell will be able to count on conservative legal experts to help Republicans make the case for why health care reform is unconstitutional, but he will be sure to find sympathetic judges at all levels, including Supreme Court justices like John Roberts, Samuel Alito, Antonin Scalia.
Source: Amanda Terkel in Huffington Post, "Mitch McConnell" , Nov 18, 2010

States decide insurance issues, not federal government.

Justice Roberts joined the Court's decision on Empire HealthChoice Assurance v. McVeigh on Jun 15, 2006:

A 5-4 Court decided that federal jurisdiction does not extend to controversies over insurance contracts under the Federal Employees Health Benefits Act. Thus, state courts are the proper venue for contract disputes arising between federal employees and insurance companies, which may result in inconsistent outcomes across states.

Empire Healthchoice Assurance sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of this federal employee had won $3.2 million in a separate lawsuit; Empire Healthchoice claimed reimbursement because the beneficiary was compensated for the same injury by a third party.

HELD: Ginsburg, joined by Roberts, Stevens, Scalia, and Thomas

The Court ruled that under the Federal Employees Health Benefits Act, state courts, not federal courts, are the proper forum for a contracts lawsuit by a plan administrator seeking reimbursement for medical costs. Empire, the Court ruled, had not demonstrated a "significant conflict between an identifiable federal policy or interest and the operation of state law."

DISSENT: Breyer, joined by Kennedy, Souter, and Alito

The dissenting opinion asserted that the dispute should have been deliberated at the federal level because, in part, "there is little about this case that is not federal."


Judge Sotomayor, then on the Second Circuit prior to her Supreme Court nomination, found no federal jurisdiction because Empire failed to show that New York state law "significantly conflicts" with federal interests. The Supreme Court affirmed Sotomayor's decision.
Source: Supreme Court case 06-MCVEIGH argued on Apr 25, 2006

Federal law pre-empts state laws on generic drug warning.

Justice Roberts joined the Court's decision on PLIVA v. MENSING on Jun 23, 2011:

Plaintiffs were prescribed a brand name drug for which pharmacists substituted a generic drug, which the FDA had approved under the process federal law authorized for generics. Plaintiffs were diagnosed with a disorder linked to the extended use of the drug. They filed state tort law claims against the manufacturers of the generics, alleging failures to label their products with a warning of known risks. The generics carried the same warnings as the brand name and, the manufacturers argued, since federal regulations required the generics to have the same warnings as the brand name, compliance with a state law requiring different warnings was impossible.

HELD: Delivered by Thomas; joined by Roberts, Scalia, Kennedy & Alito

Generic manufacturers were forbidden to change unilaterally the label warning of the drug. Plaintiffs argued that the manufacturers could have complied with both state and federal law by following the process federal regulations set out of proposing stronger warnings to the FDA (which they did not), after which the FDA might have decided to negotiate a label change with the brand name manufacturer that the generic manufacturers would have been required to adopt. The Court found that
  1. state law required a stronger warning
  2. federal law prohibited a stronger warning, and
  3. requesting the FDA to authorize a stronger warning
was not enough to comply with state law requiring a stronger warning. Federal and state laws conflict when it is impossible to do what both laws require. It was impossible for the generic manufacturers to comply with both laws. Since federal law preempts conflicting state law, the manufacturers may not be sued on these state law claims.

DISSENT: Sotomayor dissents; joined by Ginsburg, Breyer & Kagan

Congress could not have intended the result that brand name drug consumers may sue manufacturers for failure to warn, while the much larger class of generic drug consumers may not.
Source: Supreme Court case 11-PLIVA argued on Mar 30, 2011

Other Justices on Health Care: John Roberts on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Mar 08, 2014