Progressives Defending the Constitution

The Fourth Circuit Court of Appeals has been a conservative stronghold for the past two decades. But between the resignation of conservative icon Michael Luttig in 2006 and four confirmed Obama appointments, it now has a majority of Democratic appointees. These odds combined with luck of the draw this past week, when a computer selected three Democratic appointees -- Clinton appointee Diana Gribbon Motz and Obama appointees Andre Davis and James Wynn -- to hear the constitutional challenge to the Affordable Care Act (ACA). Given that the challenge will ultimately head to the conservative Supreme Court, Tuesday's oral arguments were not necessarily indicative of the ultimate fate of the ACA. But they did reveal how weak the legal arguments against it are.

One question the appeals court considered was whether the state of Virginia even had standing to bring the lawsuit in the first place. During Tuesday's oral arguments, acting Solicitor General Neal Katyal argued that if Virginia did have standing in this case, the court would also have to allow "a state that was opposed to the war in Afghanistan to say our citizens should be exempt and file a lawsuit on that basis."

But what was most significant about Tuesday's oral arguments was the skepticism the Court showed toward the core constitutional claim advanced by Hudson and other ACA critics: that the commerce clause in Article I of the Constitution gives Congress the power to regulate economic "activity" but not "inactivity." As lawyers for the government pointed out, the distinction makes little sense on its own terms and also lacks any basis in the text of the Constitution or the Court's precedents.

Only in a libertarian utopia in which the poor and uninsured are simply left to die in the case of medical emergencies, might the distinction be meaningful. But given the better world we actually live in -- in which regulations require emergency rooms to treat the uninsured -- nobody chooses to refrain from participating in the health-care market. Whether you buy insurance or not, you end up in the emergency room if you're hit by a car; people who do not purchase insurance are simply agreeing to let taxpayers pay for their medical care, not choosing to be "inactive." As Kaytal reasoned, Congress is therefore "not asking people to buy something they would not otherwise buy."

In addition, Judge Wynn convincingly argued that requiring universal participation in the health-care market does not put us on a slippery slope to government tyranny, as ACA critics love to say.

But the "activity/inactivity" distinction is not only conceptually problematic; it lacks any real legal basis. The text of the Constitution certainly does not make this distinction, nor has it been relevant to many of the Supreme Court's foundational precedents. As Mark Tushnet of Harvard Law School writes, the controlling Supreme Court precedent in Wickard v. Filburn allowed the government to set quotas for wheat consumed by a grower, because farmers who used their own wheat would not purchase that wheat from the open market.

The appearance of the word "activity" in Supreme Court commerce-clause precedents is a relatively recent phenomenon. As Judge Motz noted, "When Daniel Webster spent four days arguing a case on commerce regulation before the Supreme Court, he never once mentioned 'activity' as a crucial factor." Constitutional critics of the ACA like to pride themselves on their fealty to the text and original meaning of the Constitution, but their argument in this case is based only on very strained readings of previous court decisions.

Why did legal challenges to the ACA come to rest on such a feeble argument? The answer is that political realities painted conservative litigators into a corner. It is possible to make a coherent and principled argument that the Affordable Care Act is unconstitutional. But this argument would have to look like those advanced by libertarian legal scholars like Randy Barnett and Richard Epstein, who have argued that the modern regulatory state is itself unconstitutional. If the commerce clause should be read as merely conferring on the government a limited power to regulate trade, then the Affordable Care Act is indeed unconstitutional.

The problems with advancing such a claim, however, are manifest. First, such arguments were conclusively rejected by the Supreme Court 70 years ago. Second, a constitutional vision reverting our regulatory law to the 1800s would have no political support. The "activity/inactivity" distinction is less a serious argument than an ad hoc, outcome-oriented attempt to strike down a particular law without threatening other popular federal programs.

Alas, the weakness of the arguments against the ACA does not mean that the five conservative Republicans on the Supreme Court will not embrace them. But they do show that progressives should be proud of their constitutional vision. Conservatives like to portray the debate over the ACA as a battle between the text and history of the Constitution and political expedience. And it is -- only it's conservatives putting partisan politics first.

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