Justice Ginsburg’s bench announcement of her dissent appears below. However, the Fisher story does not end here. As the Court’s majority ordered, the case went back to the Fifth Circuit, which concluded, for the second time, that the University’s use of race as one factor in its admissions process was constitutional. The Supreme Court once again reviewed the Fifth Circuit’s decision, as described in more detail in Highlights of the U.S. Supreme Court’s 2015–16 Term at pp. 318–21 and 327–28.
In my view, the courts below adhered to this Court’s pathmarking decisions and there is no need for a second look.
My dissenting opinion questions the starting premise on which this case has proceeded. Texas’ Top Ten Percent Law requires public universities to admit any graduate of a Texas high school ranked in the top 10 percent of her class. Petitioner calls the law race-neutral, and the Court accepts that characterization. The diversity achieved by the Top Ten Percent Law, petitioner urges, is accomplished without resort to a racial criterion, so the University has no constitutionally permissible basis for treating race as a relevant factor in reviewing individual admissions applications.
In truth, is the Top Ten Percent Law racially neutral in comparison to the University’s explicit regard of race as one among many factors relevant to its educational mission? Is it not blindness to race, but race consciousness instead, that drives percentage plans such as the one Texas has adopted? But for de facto racial segregation in Texas’ neighborhoods and schools, there would be no Top Ten Percent Law. The Texas Legislature deliberately used the State’s demographics primarily to achieve a measure of racial diversity in the State’s public universities.
The notion that the Top Ten Percent Law is race-neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking about the thing which it is attached to, then you have a legal mind.” Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race-conscious.
I have several times explained why government actors, including state universities, need not blind themselves to the still-lingering, everyday evident, effects of centuries of law-sanctioned inequality. Among constitutionally permissible options, I remain convinced, those that candidly disclose their consideration of race are preferable to those that conceal or obscure what drives them.
Like so many educational institutions across the nation, the University of Texas modeled its admissions plan after the law-school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of the University of California v. Bakke.
The Court rightly declines to cast off the equal protection framework settled ten years ago in Grutter. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to “assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court’s Bakke and Grutter pathmarkers, merits our approbation.
Bench Announcement
National Federation of Independent Business v. Sebelius
June 28, 2012
On June 28, 2012, the last day of the Supreme Court’s 2011–12 Term, the courtroom was packed. A thousand people gathered outside and many thousands more turned on their televisions and radios to learn the outcome in the most-watched case since Bush v. Gore. The question in the NFIB v. Sebelius case: would the Patient Protection and Affordable Care Act of 2010 (the “ACA”) survive the constitutional challenges marshalled against it?
That complex and controversial act, designed to ensure virtually everyone in the United States access to health care, adopted two basic mechanisms to achieve that goal. First, it required individuals who were not covered by employer-provided insurance or by Medicaid to purchase insurance. The ACA provided for “insurance exchanges” where such individual insurance could be purchased, and created a penalty, collectible by the IRS, for those who failed to obtain insurance by the 2014 deadline.
Second, the ACA expanded Medicaid. That federal-state program, which had been adopted by all the states, provides medical services for low-income persons who are disabled, blind, or elderly and for needy families with dependent children. The ACA added all non-elderly adults with incomes below 133 percent of the federal poverty level.
The two provisions under constitutional attack were, first, the Act’s “individual mandate” to purchase insurance, and, second, a mechanism to induce states to adopt the Medicaid expansion: possible revocation of resisting states’ federal funding for its previously existing Medicaid program.
As Chief Justice Roberts began to announce the majority opinion, supporters of the Act had reason to hold their breath. After all, he was one of the five Justices labeled conservative; if he was speaking for them, the ACA might be doomed. Those fears seemed confirmed as he explained that the Constitution’s “commerce clause,” which bestowed upon Congress power “to regulate commerce . . . among the several states,” did not authorize a provision such as the individual insurance mandate. (At least one television network, alerted by one of its reporters within the courtroom, announced that the Supreme Court had held that the ACA was unconstitutional.)
But the Chief Justice wasn’t done with his bench announcement: although the Commerce Clause did not authorize Congress to enact the individual mandate, he continued, another constitutionally granted congressional power—the power to “lay and collect taxes”—did provide the necessary authorization, a conclusion in which he was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The individual mandate, the linchpin of the ACA’s insurance scheme, had survived by a vote of five to four.
Not so the ACA’s inducement to get states to adopt the ACA’s Medicaid expansion. Unconstitutional, the Chief Justice declared. When Congress, in addition to extending the carrot of generous funding for the expansion, threatened states with the stick of terminating federal support for their preexisting Medicaid programs, “pressure turn[ed] into compulsion” and the legislation “runs contrary to our system of federalism.” From this conclusion only Justice Ginsburg, joined by Justice Sotomayor, dissented.
Justice Ginsburg’s twenty-minute dissenting bench announcement, the most lengthy she has delivered, addressed both of the Court’s holdings.
In the 1930s, Congress responded to the need of senior citizens for old age and survivors insurance. It did so by making Social Security a tax-based, entirely federal program. In 2010, Congress addressed the public need for affordable health care when sickness or injury occurs. Congress did so by taking a path unlike the one it took for Social Security. Instead of an entirely federal program, the Affordable Care Act gives states and private insurers important roles in ensuring medical care for those who need it. The question the Court must answer is whether the Constitution stops Congress from taking the course it did. I would answer, emphatically No.
I agree with the Chief Justice that Congress’ power to tax and spend supports the so-called individual mandate or minimum coverage provision. But I would make that an auxiliary holding. As I see it, Congress’ vast authority to regulate interstate commerce solidly undergirds the Affordable Care legislation. I would uphold the legislation, first and foremost, on that ground.
Since 1937, the Court has deferred, as it should, to Congress’ policymaking in the economic and social realm. Today, a majority of the Court rules that the commerce power is not adequate to the task. That ruling harks back to the era, ended seventy-five years ago, when the Court routinely thwarted legislative efforts to regulate the economy in the interest of those who labor to sustain it. It is a stunning step back that should not have staying power.
The Court’s majority wou
ld compare health insurance to broccoli. If the government can compel people to buy insurance, then there is no commodity the government can’t force people to purchase, so the argument goes. But health care is not like vegetables or other items one is at liberty to buy or not to buy. All of us will need health care, some sooner, some later, but we can’t tell when, where, or how dire our need will be. A healthy twenty-one-year-old, for example, may tomorrow be the victim of an accident that leaves him or her an invalid, in need of constant and costly medical care. Further, to get broccoli, one must pay at the counter. Not so of health care. The accident victim who cannot pay the steep price of medical services will nevertheless receive emergency and follow-up care, because the law and professional ethics so require, and because ours is a humane society. But people who do purchase insurance end up footing the bill. By requiring the healthy uninsured either to obtain insurance or pay a toll, Congress sought to end this free ride.
It is shortsighted, moreover, to see the mandate as a decree that hale and hardy young people subsidize care rendered to older, less healthy people. In the fullness of time, today’s young and healthy will become society’s old and infirm. Viewed over a life span, the costs and benefits even out. And as I just noted, the youth who does not want insurance today may find that tomorrow, she desperately needs the services insurance is designed to secure.
What the mandate does, essentially, is to require people to prepay for medical care through insurance, instead of waiting, expecting to pay out of pocket at the point of service, when, in reality, many will lack the money to cover the cost. (Establishing payment terms for goods or services in or affecting interstate commerce is the kind of economic regulation that lies well within Congress’ domain.)
The Chief Justice reasons that Congress can use its commerce power to regulate something already in existence, but cannot create that something in order to regulate it. But the interstate health insurance and health care markets are not Congress’ creations; both existed well before the enactment of the Affordable Care Act.
I have already emphasized the unique attributes of the health care market: the fact that all of us will be in it sooner or later and cannot predict exactly when; the huge free-rider problem caused by people who refrain from purchasing insurance, then become sick or injured and get care cost-free to them, but costly for those of us who have paid in advance. Because there is no comparable market, the slippery slope envisioned by the Court’s majority (if health insurance today, then broccoli tomorrow) is far more imaginary than real. As a learned jurist once commented: “Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”
Yes, the insurance purchase mandate is novel, but novelty is no reason to reject it. As our economy grows and changes, Congress must be competent to devise legislation meeting current-day social and economic realities. For that very reason, the Necessary and Proper Clause was included in the Constitution, to ensure that the federal government would have the capacity to provide for conditions and developments the framers knew they could scarcely foresee.
In enacting the Affordable Care Act, Congress’ aim was to reduce the large number of U.S. residents, some 50 million in 2009, who lack health insurance. Congress was aware that the vast majority of those who lack insurance are not uninsured by choice. One group of particular concern to Congress were individuals with preexisting medical conditions. Before the ACA’s enactment, the insurance industry charged these individuals steep prices or flatly denied them coverage. Congress understood, however, that a simple ban on those practices would not work. Without the mandate to acquire insurance, covering those with preexisting conditions would trigger a death spiral in the health insurance market: many people would not buy insurance until they suffered sickness or injury, premiums would skyrocket, more people would be added to the ranks of the uninsured because they could not pay the steep premiums, and, eventually, insurance companies, left with a pool of high-risk policyholders, would exit the market. With the mandate, the job could be done: access to insurance would be available and affordable; and uncompensated care would be hugely reduced.
In no way was Congress’ action improper. The mandate acts directly on individuals; it does not commandeer the states as intermediaries. And along with other provisions of the Act, it addresses the sort of countrywide problem that made the Commerce Clause essential. The crisis created by the many millions of U.S. residents who lack health insurance is hardly contained within state boundaries. Far from encroaching on state prerogatives, the Affordable Health Care Act supplies a federal response to a need the states, acting separately, are incapable of meeting.
This Court has long recognized that the power to regulate interstate commerce “is an affirmative power commensurate with the national needs.” While the Court upholds the mandate, as it surely should, it also, regrettably, hems in Congress’ commerce power. In doing so, the Court invites assaults on national legislation irreconcilable with the framers’ anticipation. Their understanding and expectation was that the Commerce Clause would empower Congress to act “in all Cases for the general Interests of the Union, and also in those instances in which the States are separately incompetent.”
My dissent from the Court’s retrogressive reading of the Commerce Clause is joined by Justices Breyer, Sotomayor, and Kagan.
There is a further issue: Congress’ expansion of Medicaid to include a larger portion of the nation’s poor. Medicaid is the prototypical example of federal-state cooperation. Rather than authorizing a federal agency to administer a uniform national health care system for the poor, as Congress did in establishing Medicare for seniors, Congress offered states the opportunity to tailor Medicaid grants to their particular needs, so long as they remain within bounds set by federal law. Congress reserved the “right to alter, amend, or repeal” any provision of the Medicaid Act; and participating states, for their part, agreed to amend their Medicaid plans consistent with alterations in the federal law. From 1965 until 2010, states regularly conformed to amendments expanding Medicaid, sometimes quite sizably.
The 2010 expansion is different in kind, the Court concludes, 7 to 2. Justice Sotomayor and I disagree. According to the Chief Justice, the expansion was misnamed. It did not expand Medicaid as it existed in 2010, he maintains. Instead, Congress established a wholly new program alongside “old Medicaid,” and coerced the states to accept “new Medicaid” by threatening them with loss of funds from the old program if they hold out. On this reasoning, the Court, for the first time ever, finds an exercise of Congress’ spending power unconstitutionally coercive.
In truth, however, Medicaid is a single program with but one constant aim—to enable poor persons to receive basic health care when they need it. What the expansion does is simply this: it adds more people, all of them poor, to the Medicaid-eligible population. Congress did not otherwise change the operation of the program.
The Chief Justice justifies his characterization of the expansion as a new program on three grounds. First, he says, by covering those earning up to 133 percent of the federal poverty line, the expansion, unlike Medicaid as originally enacted, does not “care for the neediest among us.” The expansion covers adults earning less than $15,000 annually. Those low earners, on any fair assessment, rank among the nation’s poor.
Second, the Chief observes that newly eligible people receive a level of coverage less comprehensive than the traditional Medicaid package. But the ACA did not introduce the less comprehensive package. Since 2006, states have been free to use it for many of their Medicaid beneficiaries.
Third, the reimbursement rate for participating states is different. True, but that rate is markedly more generous than the usual federal contribution, hardly something the states can complain about. The federal government picks up 100 percent of the tab initially, gradually reducing to 90 percent.
Suppose Congress had from the start made Medicaid-eligible all those originally covered, plus those added by the expa
nsion. That would be unobjectionable under the Chief Justice’s reasoning. But we have never held that a grant program becomes two rather than one when Congress lays a foundation and later builds on it. Congress can, and often does, expand programs, adding new conditions that grant recipients must meet in order to continue receiving funds.
Our decisions, I acknowledge, have hypothesized that a financial inducement might “pass the point where pressure becomes coercion,” and therefore exceed Congress’ spending power. But until today, that prospect has remained theoretical. The Court had found no case fitting the bill.
Recall that Congress reserved to itself, when it adopted Medicaid in 1965, the right to alter, amend, even repeal any provision. This Court long ago explained what those words mean. They mean Congress retains “full and complete power to make such alterations and amendments . . . as come within the just scope of the legislative power.”
States have not missed that meaning. Each time a state notified the federal government of a change it made in its own Medicaid plan, it certified both that it knew the federally set terms of participation could change, and that it would abide by the changes as a condition of continued participation.
Today’s decision holds that Congress can alter a spending program “somewhat, but not too much.” We can anticipate bolder challenges than in the past urging that a congressional amendment goes too far, turning “pressure . . . into compulsion.” When those challenges arrive, my colleagues may comprehend the wisdom of the observation that conceptions of “impermissible coercion” premised on a state’s perceived inability to decline federal funds “are just too amorphous to be judicially administerable.”
My Own Words Page 30