Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.
Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities—in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.
Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four—a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.
The second distinction is even more more significant. Today Brown is a nearly universal icon of social progress, while Roe remains an object of great controversy. But, for better or for worse, both cases represented efforts to change the everyday reality of American life. WithBrown, the justices were tearing down barriers to racial equality; with Roe, the justices were eliminating laws that prevented access to abortion.
But in this case, nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital—suggesting, as Elena Kagan stated, that the only problem with the Affordable Care Act is temporal.
Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law’s architects had simply used the word “tax” to describe the penalty.
Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the President didn’t use perfectly constitutional language to describe it.
This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.
Now, maybe the court has been wrong all this time. Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.
Basically anything the government does that has ever been justified by the Commerce Clause will be open to challenge. For the sake of their own sanity and summer recesses, the justices ought to proceed cautiously.
Conservatives also ought to pause and consider all the lectures they have delivered over the past half-century about the need for judicial restraint. Whether authorized under the Commerce Clause or not, all of these laws — including Obamacare — were enacted by the democratically elected institutions of government. For the Supreme Court to call them all into question would be a power grab far beyond anything the court has attempted during the long era of conservative griping on this point.
Whenever liberals argue stare decisis, conservatives understandably get suspicious. In theory, it’s a pretty conservative doctrine. It says, things as they are should stay as they are. In practice, conservatives complain, it works like a ratchet: Liberals, when they’re in control, invent new rights, and then conservatives, under stare decisis, are supposed to do nothing about them when their turn comes. But the fact that courts have been upholding legislation under the Commerce Clause for seven decades with virtually no debate does make it seem unlikely that the whole thing has been a giant constitutional misunderstanding.
The legal challenges to ACA, which the Supreme Court will hear next week, center on its key provision, the individual mandate. The mandate essentially requires all adults to obtain health insurance, either through their employers or by buying it themselves. (There will be subsidies for those who cannot afford it.) The idea of a health-insurance mandate first came to wide public notice in 1989, in the form of a proposal from the Heritage Foundation, one of Washington’s venerable right-wing think tanks. In subsequent years, the idea was embraced by a variety of politicians, mostly conservatives, including Newt Gingrich and Orrin Hatch. In Massachusetts, of course, Governor Mitt Romney made it the centerpiece of his health-care-reform plan. For decades, no one suggested that an individual mandate was unconstitutional.
This was understandable. The principal constitutional justification for the individual mandate is the Commerce Clause, which gives Congress the right to regulate commerce among the states. The meaning of this provision has been settled since shortly after the New Deal. The Court has said repeatedly that Congress has the right to regulate economic activity even if it takes place only within a state.
The main argument that opponents of the health-care law have come up with is that the mandate regulates economic inactivity—i.e., not buying insurance—and the Commerce Clause allows only the regulation of economic activity. In the first appellate review of the law, last summer, the Sixth Circuit demolished that argument. The court pointed out that there are two unique characteristics of the market for health care: “(1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.” Thus, there was no such thing as “inactivity” in the health-care market; everyone participates, even if he or she chooses not to buy insurance. Indeed, the choice to forgo insurance imposes a direct cost on the taxpayers, who wind up footing the bill. Those choices by consumers, especially in the aggregate, represent an economic matter that Congress may decide to regulate.
The precedents supporting the constitutionality of ACA haven’t changed, but the federal judiciary, including the Supreme Court, has. As in the Senate, moderate Republicans held sway for years at the Supreme Court, but that species has vanished on both sides of First Street. The likes of Lewis Powell and Sandra Day O’Connor have been replaced by the likes of John Roberts and Samuel Alito. In order to strike down health-care reform, the new Republican Justices would have to change the underlying constitutional law, which they have proved themselves more than capable of doing. They have already cut a swath through the Court’s precedents on such issues as race, abortion, and campaign finance, and it’s possible that they will assemble the votes to do the same on the scope of the Commerce Clause. The high-stakes health-care case is a useful reminder of the even higher stakes in the Presidential election.
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