The Affordable Care Act On Trial

Today the Supreme Court begins hearing oral arguments to determine the constitutionality of the Affordable Care Act. It's the timid (or maybe wise) pundit who fears making predictions, so I'll go ahead and say this: the Court is going to uphold the ACA, by a vote of 6-3. Chief Justice John Roberts will join the four liberal justices and Anthony Kennedy in the majority, and Roberts will write the decision. Justices Scalia, Thomas, and Alito will offer a vigorous and at times comically overstated dissent, in which they will decry the end of the freedom that universal health coverage will bring.

That may just be optimism talking; I've certainly allowed my hopes to outrun good sense before. There's a voice inside me that says "Don't forget Bush v. Gore!" In other words, the Court is perfectly capable of acting in a nakedly partisan manner if it so chooses, so the five conservatives could well decide that the opportunity to undo a Democratic president's signature domestic policy accomplishment is just too good to pass up. But as the always insightful Dahlia Lithwick wrote, "the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution. For over a decade now, the justices have been united in signaling that they are moderate, temperate, and minimalist in their duties," and in a session filled with contentious issues, including affirmative action, redistricting, and immigration, "some justices may believe that this isn't a fight worth having. Not now and not over this issue."

And legally, it's not even a close call. Given how broadly the Court has interpreted the federal government's power to regulate commerce (for instance, declaring in a decision that the government can prevent an individual from growing marijuana for his own use, just as it ruled 70 years ago that the government could punish a farmer for exceeding his production quota even though he was growing crops for his own consumption), to say that it isn't within its power to set conditions on people's participation in the the enormous and universal market that is health insurance is just laughable (and read what Kevin Drum points out about the importance of the Constitution's "necessary and proper" clause, which makes the ACA's constitutionality even clearer). The other issues the ACA's opponents have raised–for instance, that the federal government has no right to expand eligibility for the joint federal-state program of Medicaid, even when the feds are the ones paying the bills for the expansion–are equally if not more inane. 

Not that all that necessarily matters. The justices can rule however they want, for whatever reasons they want. Conservatives are hoping and praying for some good old-fashioned judicial activism. But I'm remaining optimistic that their prayers won't be answered.

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