There’s a lot of debating going on about whether or not Chief Justice Roberts changed his vote in NFIB v. Sebelius (the ACA decision). I have no idea whether he did or not. Many people are citing as evidence a statement in the joint dissent that is widely misunderstood. The joint dissent’s reference to Justice Ginsburg’s dissent is not an error. At that point the joint dissent is discussing the Commerce Clause. The section of Justice Ginsburg’s opinion that addresses the Commerce Clause is a dissent.
In NFIB v. Sebelius the Supreme Court decided three questions:
- Is the individual mandate in Title I of the ACA constitutional under the Commerce Clause?
- Is the individual mandate in Title I of the ACA a constitutional exercise of Congress’ taxing power?
- Would withholding all Federal funds for Medicaid from states that refuse to implement the expansion of Medicaid contained in Tittle II of the ACA be an unconstitutional abuse of Congress’ spending power?
The Court’s decision gave these answers:
- Yes, the mandate is unconstitutional under the Commerce Clause.
- No, the mandate does not exceed Congress’ taxing power.
- Yes, it would be an unconstitutional abuse of Congress’ spending power if Secretary Sebelius withheld all Medicaid funds from states that refuse to implement the expansion. BUT that defect can be cured by forbidding Secretary Sebelius from applying 42 U.S.C. section 1396c to withhold funding for existing Medicaid services from states that do not comply with Title II.
Justice Ginsburg answered the questions this way:
- No, the individual mandate is not unconstitutional under the Commerce Clause. (This is a dissent. She rejects the Court’s answer to this question.)
- No, the mandate does not exceed Congress’ taxing power. The Court’s opinion explains the reasons why it does not exceed that power. (This is a concurrence. Justice Ginsburg agrees with both the answer the Court gave and way the Court explained its answer.)
- No, it would not be unconstitutional under the Spending Clause for the Secretary to withhold all funding for existing Medicaid in order to induce states to comply with Title II. However, since the Chief Justice has solved what he sees as a constitutional problem without striking down 42 U.S.C. section 1396c I can live with the result he reaches. All the Chief Justice has done is limit the way the Secretary can apply section 1396c to the ACA. I can accept that result. (This is a concurrence in the result. Justice Ginsburg takes a different route but she ends up at the same destination. She doesn’t agree the Chief Justice’s explanation but she agrees with his final answer.)
With respect to the Court’s opinion, Justice Ginsburg’s opinion concurred in part (Q.2), concurred in the result in part (Q.3), and dissented in part (Q.1). Both the sentence describing Justice Ginsburg’s opinion on p. 1 of her opinion and the reference to her dissent on the Commerce Clause issue on p. 13 of the joint dissent accurately describe her opinion.