This is the first of a series of posts looking at the arguments in the upcoming health-care case.
Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case.
So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear—Cheese it, it’s the Broccoli cops!—and Justices are members of the public.
The two party briefs by foes of the ACA play heavily on that fear. Be afraid, they warn. Be very afraid. A corrupt, power-hungry Congress wants control of your evening cocktail, your dinner plate, and the car you drive.
The government’s tone is calmer. Nothing to see here, the government’s briefs (one opening brief and a reply brief) say. Just government doing its job. Probably that’s the right approach. Only in its reply brief does the government—subtly—point out the potential danger to the Court of striking down the mandate.
The state parties’ brief makes extensive use of the word “unprecedented”; if the brief were a drinking game, I’d have had to down 19 shots. Nothing new in that—it will either work or it won’t. The potential danger to the Court lies in the brief’s second major argument. It suggests that the ACA, having been passed through a legislative process in which the congressional majority balanced the interests of health-care providers, insurers, and consumers, and further considered its own members’ political interests, is unconstitutional for exactly that reason. Congress tries to make different constituencies happy. Its decisions cannot stand.
Here’s the nub of the argument:
Congress was well aware that the insurance industry would vehemently oppose [the Act’s requirements of expanded coverage] without some form of federal subsidy to offset their costs, yet it was also aware that the public would not support a general tax increase to pay for that subsidy. By imposing an unprecedented command that healthy individuals simply subsidize the insurance industry directly by buying insurance they did not want or were unlikely to use, Congress neatly avoided the political constraints that the Constitution contemplates will limit its power to enact unpopular regulations and general taxes.
In other words, because the individual mandate makes use of private insurance companies, it is a kind of bribe to them. And because Congress designed the program to be acceptable to the public, it violates the Constitution.
The second party brief opposing the ACA was filed by private parties—the National Federation of Independent Business and several individuals. It also wants the justices to be afraid. Forget broccoli—Congress may force liquor down the innocent throats of abstainers. Current doctrine “allows Congress to regulate local bootleggers because of their aggregate harm to the interstate liquor market,” the brief argues. “[I]t may not conscript teetotalers merely because conditions in the liquor market would be improved if more people imbibed.”
But beyond the idea that every member of Congress harbors the secret wish to force food or drink on the unwilling populace (what I call the “gag me” argument), there is also what I call the “corrupt political process” argument. Because “the Act effectively compels insurers to offer limitless health insurance to any individual, no matter how sick, at average rates that ignore actuarial risk,” it argues, “Congress heeded the insurance industry’s lobbying for a mandate compelling individuals to obtain insurance.” This “provides insurers and their voluntary customers with a $28-39 billion annual subsidy.”
In other words, economic regulation that creates winners and losers is unconstitutional for that reason alone; Congress can only legislate when it does so in a way that angers everybody. The usual legislative practice of balancing interest groups is no longer licit. If members make deals, logroll, and protect specific interests—indeed, if Congress designs programs to win political support—the Court is to step in and strike down the product on that ground alone.
How to describe this argument in one word? How about “unprecedented”?
As noted above, the government’s reply brief includes a very low-key warning of where the “corrupt process” argument may lead the Court. The opponents’ “effort to imbue their subsidy argument with constitutional significance ignores this Court’s precedents and consistent legislative practice,” it warns. It notes the Court’s dictum in Wickard v. Filburn that “[t]he conflicts of economic interest between the regulated and those who advantage by [regulation] are wisely left under our system to resolution by the Congress.”
If the Court majority buys even partially into the “corrupt process” argument, it will find itself asked to examine every challenged federal law to see who benefits. And somebody always does: Every statute, and particularly every federal economic regulation, creates winners and losers. That was true of the Northwest Ordinance of 1787, of the Pacific Railroad Acts of the Civil War Period, of Medicare Part D in 2003. It is inescapable. And further, a decision writing the “corrupt process” rationale into law would subtly freeze in place the New Deal’s model of regulation, since the opponents concede that Congress could have enacted any number of direct government health programs. Only market-based programs—until recently championed by conservatives—are presumptively unconstitutional. A precedent against this year’s Democratic subsidy of insurance companies this year may come back to bite a Republican subsidy of the financial sector (say by privatizing Social Security) tomorrow.
As Adam Liptak notes in Monday’s New York Times, the ACA decision may be the defining moment for the Roberts Court. Already that Court, by its Citizens United decision, has been pulled into partisan politics far more than its conservative majority probably foresaw. The reaction to that decision has made the Court an issue, and even a Supreme Court Justice can probably see that its unintended effects are harming both parties.
Roberts will have to live with the result in this case for a long time. His Court has already ordered for itself a plateful of campaign-finance cases. It’s preparing to dig into affirmative action. The ACA opponents now spread a table before the Justices: case after case in which they review Congressional acts to decide how much compromise is “too much.”
Gag me indeed.