While legal pundits search high and low to discover why Justice Roberts “jumped the shark” on the individual mandate, the answer may lie in an overlooked 2003 case out of the D.C. Circuit Court of Appeals.
In Rancho Viejo v. Norton, the court addressed a Commerce Clause challenge to the Endangered Species Act. A three-judge panel in the case held the federal government’s prohibition on the taking of a protected toad–a noncommercial, intrastate species–was a valid regulation of interstate commerce because the taking would result from a commercial activity. On petition for rehearing en banc, then Judge Roberts expressed the opinion that the panel was wrong on its Commerce Clause analysis. According to Judge Roberts, “The panel’s opinion in effect asks whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so. Thus, the panel sustains the application of the Act in this case because Rancho Viejo’s commercial development constitutes interstate commerce and the regulation impinges on that development, not because the incidental taking of arroyo toads can be said to be interstate commerce.” This echos Justice Roberts’ understanding of Obamacare, which raised the question whether the individual mandate regulated activity (or inactivity) substantially affecting interstate commerce or created such activity.
In Rancho Viejo, Judge Roberts observed, “The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce … among the several States.’” Judge Roberts concluded this went too far: “Such an approach seems inconsistent with the Supreme Court’s holdings in [Lopez] and [Morrison]” wherein the Supreme Court held that federal legislation prohibiting the possession of firearms in school zones and violence against women was invalid under the commerce power. Citing the Fifth Circuit, Judge Roberts explained, “looking primarily beyond the regulated activity … would ‘effectually obliterate’ the limiting purpose of the Commerce Clause.”
Based on this analysis, it should have been no surprise that Justice Roberts would find that the individual mandate in Obamacare had exceeded the constitutional limitation to regulate commerce: “The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do.” Accordingly, “Such a law cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’”
But it’s Judge Roberts’ final comment in Rancho Viejo that, in light of the Obamacare decision, gives us pause. In urging the entire Court of Appeals to review the panel decision’s faulty Commerce Clause analysis, he stated, “Such review would  afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.” That simple statement obviously held more meaning for Judge Roberts than was credited. This was no passing remark. Instead, it was a statement of Judge Robert’s strongly held judicial philosophy that the courts should uphold federal legislation whenever possible. And we learn, from Justice Robert’s recasting of the individual mandate penalty as a “tax,” that it is almost always possible to uphold federal legislation when the court is willing to rewrite the Act. But this is not the first time we have seen this inclination.
When Justice Roberts was appointed as Chief Justice, in 2005, one of the first cases the new court took up for review was Rapanos v. United States. In that case, John Rapanos, represented by Pacific Legal Foundation, raised a Commerce Clause challenge to the Clean Water Act. The court did not address the Commerce Clause issue. Instead, the new Roberts Court avoided a constitutional conflict altogether by reinterpreting the Act, apparently to limit federal jurisdiction that would otherwise exceed the commerce power. The plurality opinion (joined by Thomas, Alito and Roberts) was authored by Justice Scalia, but it was clearly a compromise that showed the hand of the Chief Justice. Whereas the Clean Water Act prohibits unpermitted discharges into “navigable waters,” defined in the Act only as “waters of the United States,” the plurality parsed the word “waters” in much the same way that Justice Roberts parsed the word “tax” in the Obamacare case. Based on the Court’s hypertechnical reading of that word, the plurality in Rapanos expanded the traditional meaning of “navigable waters,” as highways of commerce, to include nonnavigable tributaries to such waters. Although this was a narrower reading of the Act than the government championed, in effect, the plurality rewrote the Act.
In a separate, concurring opinion, Justice Roberts chastised the Corps of Engineers and the Environmental Protection Agency for not adopting meaningful limits on agency authority under the Clean Water Act. It is curious, however, that the Chief Justice put the entire onus on the enforcement agencies rather than on Congress to define the scope of federal legislation. Although this was the third time the Court had to address federal jurisdiction under the Clean Water Act, and Justice Roberts acknowledged some ambiguity in the Act itself, and the fact that a majority on the court could not agree on where the limits on agency authority should be drawn, Justice Roberts did not urge Congress to clarify the statutory language. Perhaps, in retrospect, this can be seen as an indication of Justice Roberts aversion (demonstrated for all to see in the Obamacare case) to challenge congressional intent.