In contrasting Justice Ginsburg's opinion on the Affordable Care Act with Scalia's dissent, one of the most striking differences is how the Framers are understood: Ginsburg sees them as pragmatic problem-solvers, while Scalia envisions them as rigid ideologues placing individual freedom above practical goals.
The core of the Scalia-written dissent is that the Constitution is NOT about solving problems, but rather following the most crimped interpretation of the words. Indeed, he ridicules Ginsburg for viewing the founding document as implicitly intended to give the elected branches of government the flexibility to address national challenges.
Yet, there was little question from either side that virtually every American participates in the commerce of health care -- from birth to death -- and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is clearly a national market.
In the dissent, the four right-wing justices acknowledged that ...
"Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution."The question in this case, however, is whether the complex structures and provisions of the ... Affordable Care Act ... go beyond those powers. We conclude that they do."
Scalia noted that Ginsburg...
"treats the Constitution as though it is an enumeration of those problems that the Federal Government can address -- among which, it finds, is 'the Nation's course in the economic and social welfare realm,' ... and more specifically 'the problem of the uninsured.'"The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce.
"None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power."
The right-wing justices insisted that the power to "regulate" commerce couldn't possibly cover something like a mandate to buy health insurance.
Chief Justice Roberts -- in his own opinion, which rejected use of the Commerce Clause but then justified the Affordable Care Act under the Constitution's taxing powers -- decided that some of the definitions of the word "regulate" couldn't be applied because they were not the first definitions in the dictionaries of the late 18th Century.
In an earlier opinion upholding the Affordable Care Act, conservative U.S. Appeals Court Judge Laurence Silberman noted that...
"At the time the Constitution was fashioned, to 'regulate' meant, as it does now, '[t]o adjust by rule or method,' as well as '[t]o direct.' To 'direct,' in turn, included '[t]o prescribe certain measure[s]; to mark out a certain course,' and '[t]o order; to command.'"In other words, to 'regulate' can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term 'commerce' limited to only existing commerce. There is therefore no textual support for appellants' argument... that mandating the purchase of health insurance is unconstitutional.
"However, in Roberts's ruling, the Chief Justice threw out certain definitions for 'regulate' -- such as '[t]o order; to command' -- saying they were not among the top definitions in the dictionaries of the time. Roberts wrote, 'It is unlikely that the Framers had such an obscure meaning in mind when they used the word "regulate.'"
Needing Health Care
Scalia and Roberts also adopted a very narrow concept of participation in the health-care industry. Though it's undeniable that virtually all Americans -- from birth to death -- receive medical care of various types and at different times, the Court's five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.
Roberts wrote:
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