Supreme Court of the United States

The Chief Justice, concurring in judgment.

The Equal Healthcare Act of 2015 (“the Act”) implements a host of reforms and changes to the entire healthcare system of the United States. One of those, §3, subsec. 5, transfers ownership of all privately- or semi-privatelyowned hospitals to the Government. This is indeed a major change in the structure of our country, and in the Government’s relationship to its citizens. It is true that this could even be called unprecedented. But novelty is not in and of itself fatal; our constitutional system is robust enough to handle new challenges, and to allow the People to change the nature of their society in a wide variety of ways. Indeed, while they are often the focus of debate (both political and legal), the provisions preventing government conduct are relatively small in number and scope.

This is not to say that the federal Government’s powers are limitless. But it is important that this Court recognize just where those restrictions are and are not. Our decisions form not only the law of this Nation, but also serve as guidance for the Legislature in making future laws. No legislator, it may be presumed, wishes to make a law that is guaranteed to be struck down by this Court. But I write separately because my colleague’s opinion today does not follow our existing precedent as it relates to the Takings Clause. While I concur in the ultimate judgment, I believe that much remains to be addressed.

I.

The Court bases its decision on the Due Process Clause generally, but context suggests its decision is based specifically on the Takings Clause. Supra (“[hospital owners] have been deprived of their liberty to choose how their property is to be used”). However, the Constitution does not prohibit all Government appropriation of private property, only that which occurs “without just compensation.” U.S. Const., Amend. V. The Court misses a key distinction here, as the Act provides for this very thing: “A portion of the Medicare budget deemed necessary by the Department of Health and Human Services will be used for purchasing private hospitals for public use.” §3, subsec. 3. The Petitioner has not shown any instance of property being taken “without just compensation,” only that a taking has occurred.

The Fifth Amendment does not prohibit all takings of private property by the Government, only that just compensation must be provided. The Act allows for such compensation to be made, and thus the Takings Clause is satisfied. No other portion of the Fifth Amendment seems implicated, and Petitioners have made no such argument.

II.

A

Both the Petitioner and the Government focus their arguments on the Commerce Clause, which gives Congress wide powers indeed. This Court has found numerous examples, beyond simply regulating “[c]ommerce . . . among the several States.” U. S. Const., Art. I, §8, cl. 3. Congress’ power extends far beyond: “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” Gibbons v. Ogden, 9 Wheat. 1, 189- 190 (1824). However, the parties’ focus on the question of whether the activity to be regulated, which in essence amounts to a significant amount of the healthcare given to all Citizens, neglects other significant questions.

This Court has, in the past, outlined three broad areas of commerce that Congress may regulate:

First, Congress may regulate the use of the channels of interstate commerce. The authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce.

United States v. Lopez, 514 U.S. 549, 558–559 (1995) (internal citations and quotation marks omitted). However, the Act does far more than regulate commercial or economic activity or takes public property for public benefit. It also transfers ownership of publicly-owned hospitals to the federal government.

Here too the Takings Clause is not implicated. The Fifth Amendment’s text clearly states that its provisions apply to a “person” and not a State. Thus the plain reading of the Amendment makes it clear that only when takings (among other things) are done to a person do the other provisions apply. No such requirements exist when the taking is from a State; instead, more fundamental principles govern.

B

This is where Congress’ actions must fail. Ours is a system of “dual sovereignty,” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991), with all powers not granted to Congress or other components of the federal government reserved to the States. See U.S. Const., Amend. X. We have recognized that historical precedent makes it plain that the Founders intended the States and the federal Government to be separate, and that the one would not always (or ever) be subject to the other. A fundamental precept to this arrangement is that the federal government may not force states to act in a specific way.

The Act’s text makes it clear that such a command is precisely what it sets out to do. It states, in relevant part, that “[p]ublicly owned and partially publicly owned hospitals will be run democratically, with the health-care workers employed voting on when to do their jobs and on other decisions currently made by a director or other leader. Workers will elect officials who act when a leader is needed immediately.” §3, subsec. 5. In the case of a hospital owned by a state or local government, this subsection commands them to restructure how their hospitals are run. This is fatal to this provision, as we have repeatedly held that Congress may not direct states to do a certain thing.

In New York v. United States, 505 U.S. 144, 161–166 (1992), we found that a federal law requiring a State to participate in a federal regulatory scheme regarding radioactive waste exceeded Congress’ authority. Five years later, we ruled that Congress may not make an end run around this prohibition by attempting to order state officials directly rather than state governments. Printz v. United States, 521 U.S. 898 (1997).[1] See also National Federation of Independent Business v. Sebelius, 567 U.S. ____ (2012), where a majority of the Court found that the federal government could not compel States to expand their Medicaid coverage, but could make such participation voluntary.[2]

Printz is directly applicable to the instant case. That case involved a challenge to portions of United States law governing firearms, more specifically the background checks required to purchase them. The provision at issue required the chief law enforcement officers for a locality to perform a background check on an individual seeking to purchase a firearm, even where state law did not require them to do so. The Court found that requiring local officials to perform such a task was beyond Congress’ authority.

The same reasoning used in Printz applies here as well. In Printz, the Court recognized that our government’s structure is one of juxtaposed powers. The Constitution gives specific powers to the federal government, with anything else left to the States. While it does specifically remove some aspects of state sovereignty (such as the ability to deny equal protection of the law to certain citizens), these are the exceptions rather than the rule. The Framers recognized that our system was a mixture of competing authorities, what Madison called a “compound republic.” The Federalist No. 51. This serves as a paramount protection of citizens’ liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory, 501 U.S. at 458. There is no doubt that Congress may prohibit certain acts (and the Commerce Clause is often what gives them the authority to do so), up to and including laws governing healthcare. But what Congress may not do is force state governments, either directly or through their officers, to perform a certain task in their official capacity.[3] “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts …. [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” Printz, 521 U.S. at 924 (quoting New York, 505 U.S. at 166). To allow Congress to force state health officials to act would be to destroy this balance. The Act would then become not just a fundamental restructuring of the American healthcare system, but a complete destruction of our system of government as well.

One last piece of context makes this clear. Among those actions that the Constitution specifically forbids the federal government from taking is removing or reducing a State’s territory without its consent. U.S. Const. Art. IV, §3, cl. 1. While that provision specifically addresses territory (as opposed to property), it nonetheless serves to demonstrate the structure under which our government operates, and the limitations on what Congress is and is not capable of doing.

Finally, as Printz showed, the Act cannot be saved by the Necessary and Proper Clause. That Clause allows Congress to make whatever laws are “necessary and proper” for effecting its powers under the Constitution. Since we find that it does not have the power to force states to give up their property (or at least change how it operates), the Clause is not applicable. Clearly, Congress may not enact laws that are necessary for performing tasks that it lacks the authority to do; to hold otherwise would be to render meaningless the entire concept of limited powers.

***

Ultimately, this provision of the Act cannot exist in our federal ecosystem. Congress’ intentions were admirable, and it may be hoped that it will continue to find ways to improve the welfare of all Citizens. But just as those Citizens must often yield to Congress’ prohibitions or requirements, so too must Congress stand aside where the Constitution so mandates. The Constitution does not allow state officials to be made into “puppets of a ventriloquist Congress.” Brown v. EPA, 521 F.2d 827, 839 (CA9 1975). By the same token, this Court may not shirk its own responsibilities simply because Congress’ actions seem desirable in a given situation. Our laws must apply equally or not at all. Whether we enjoy the breeze or not, we must be vigilant against the whirlwind.

[1]This holding applies equally whether the federal action attempts to coerce state or municipal officials. Printz at 931, n. 15.
[2]The primary distinction among the justices’ opinions was whether states could opt out of the expansion without also losing their Medicaid funding
[3]I also agree with the Printz court’s holding that such a law infringes upon the separation of powers within the federal government as well. See Printz at 922