The verdict of the Supreme Court upholding nearly all of the Affordable Care Act is a victory to be savored in the full knowledge that it may be only temporary and includes potentially damaging changes in constitutional interpretation.
It is a victory, first of all, for the millions of people excluded from health insurance who stand to gain protection despite their medical history or low incomes.
It is a victory for the rule of law in the face of a group of partisan conservative justices who want to immobilize federal power in social policy.
It is a victory for the millions of people who have struggled for decades to achieve equal access to health care.
Given the very strong likelihood that the centerpiece legislation of the Obama administration would be struck down in its entirety, yesterday's decision upholding the Affordable Care Act seems to most progressives like both a relief and a major political victory. But was it actually a legal victory when you examine the opinions closely? Tom Scocca says no:
In vowing this morning to do what the Supreme Court didn’t—repeal Obamacare—Mitt Romney trotted out all his arguments against the newly constitutionally sanctioned health-care law. Among them were these two points: First, that Obamacare would cause 20 million Americans to lose their health insurance, and second, that it would be a job-killer to boot.
Problem is, these two arguments directly contradict each other.
John Roberts imagined himself as a consensus-builder after his confirmation to be the 17th chief justice of the Supreme Court, a justice in the mold of John Marshall charged with alleviating divisions on the Court by advocating judicial modesty. Some progressive observers took these claims very seriously. I was inclined to view them as essentially fraudulent.
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court's conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court's interpretation of the Constitution's commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can't toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. "You have built a fantasy mansion on the Commerce Clause," the lawyer tells Smith.
Here are quotes from an anguished brief filed with the United States Supreme Court: “the present statute . . .departs markedly from any prior statute sustained as an exercise of the commerce power. . . .” It “is incapable of being regarded as within the scope of any of the other statutes or decisions.” Further, “there is no statutory precedent to support the Solicitor General's position in this case.” That position “is founded on a concept of the interstate commerce clause which has never been recognized by the Courts. While the wisdom of legislation is a matter for the Congress it is within the Court's proper prerogative to look with deep concern at an assertion of power never heretofore upheld.”
The Supreme Court has reinserted itself in the heart of domestic politics by agreeing to review the Patient Protection and Affordable Care Act (PPACA). How is the Court likely to rule? Consider two scenarios.
The first scenario relies on a prominent theory of judicial decision-making called the attitudinal model. It holds that justices are unconstrained policymakers. To predict and explain Court actions we simply need to figure out the policy implications of the legislation and justices policy preferences. The vote takes care of itself from that point.
Conservative George Washington University law professor Orin Kerr has bravely predicted the outcome of the case against the individual health care mandate once it goes to the Supreme Court, and he seems pretty confident it'll be upheld:
The latest health care ruling from the 11th Circuit, striking down the individual mandate, uses the word "unprecedented" to describe the mandate more than a dozen times*. The opinion concludes that "It cannot be denied that the individual mandate is an unprecedented exercise of congressional power." The 2-1 ruling is significant in that it marks the first Democratic appointee to vote to strike down the mandate, and the second Republican to vote to uphold it. It also upheld the rest of the law, striking down only the mandate.
Adam Winkler has an interesting post on the legal fight over the Affordable Care Act and the "gotcha" question the conservatives are likely to ask: What are the limits of the commerce clause if the mandate is constitutional?
As Adam notes, the first circuit court to hear a case about the constitutionality of the Affordable Care Act has upheld it. The concurring opinion of the first Republican judge to find the legislation constitutional -- the George W. Bush appointee Jeffrey Sutton -- is particularly interesting.
Decisions on the constitutionality of the Affordable Care Act's individual mandate have fallen along partisan lines, with Republican appointees voting to overturn it and Democratic appointees upholding it.
I'm not sure if it's quite as embarrassing as Henry Hudson's assertion that the "necessary and proper" clause doesn't give Congress any powers that weren't already enumerated (we might call that "James Madison was an utter moron" theory).