Health Care Supreme

The Supreme Court, as expected, has decided to take up the question of whether the Affordable Care Act violates the Constitution, and has allotted five and a half hours for oral argument. This is far longer than the typical 30 minutes lawyers get to argue before the Court, but it represents the magnitude of the case. Supreme Court opinions striking down acts of Congress are rare. To find a case where the Supreme Court struck down the centerpiece of a sitting president’s legislative agenda, you would have to go back to the New Deal, when reactionary holdovers like Willis Van Devanter and James McReynolds—the latter a justice so racist and anti-Semitic he would refuse to shake the hands of Jewish colleagues and turn his back on African American lawyers making oral arguments—created a constitutional crisis by repeatedly striking down key New Deal legislation. The Supreme Court's decision to hear the ACA challenge raises three key questions: Should the Supreme Court strike down the legislation? Will it? And if it does, what would the political impact be? Let’s take these questions one at a time:

Should the Supreme Court strike down the legislation?

For reasons I have discussed before, the arguments for ruling the Affordable Care Act unconstitutional are extremely weak. Conservative judicial icon Laurence Silberman, who wrote the majority opinion in a D.C. Appeals Court decision upholding the law, did an excellent job of explaining why [PDF]. The argument that the Constitution does not permit regulating “inactivity”—in this case, the failure to purchase health care—and that those who choose not to purchase insurance can nonetheless rely on the taxpayers to cover the cost of medical emergencies is not supported “in either the text of the Constitution or Supreme Court precedent." The flimsiness of the activity/inactivity distinction can be seen in conservatives' own flip-flop: None of the conservatives who spent the last term of George W. Bush’s administration arguing for Social Security reform had a problem with requiring everyone to invest their savings in private companies.

The only real argument that the Affordable Care Act is unconstitutional relies on the pre-New Deal legal concept that the law should draw strict distinctions between economic regulations that are “national” and “local”—a concept that has been utterly discredited, for very good reason. This view led to an unworkable situation in which market-dominating national sugar and coal companies were considered not to be engaged in “interstate commerce” when they manufactured goods for export, and the federal government was not able to regulate labor or set up pension programs for American citizens because these were exclusively state responsibilities (even if states could not adequately deal with them in a mobile industrial economy). The “activity/inactivity” distinction has been cooked up by conservative activists who want to avoid returning to a Gilded Age vision of federalism that threatens many programs Americans cherish (even if they ignore the fact that it logically renders their Social Security privatization schemes unconstitutional). But the distinction doesn’t make sense and the Court should reject it.

Will the Supreme Court strike down the legislation?

The fact that the arguments asserting the unconstitutionality of the Affordable Care Act are weak, alas, doesn’t mean that the Court will reject them. Bush v. Gore proved that it’s impossible to construct a legal argument so bad that a Supreme Court majority won’t accept it under the right circumstances. Perhaps striking down the heart of a sitting president’s agenda will scare the Court off; generally, acts of Congress struck down by the Supreme Court are laws favored by previous administrations or legislation peripheral to the agenda of the current governing coalition. This general trend might apply here, but the Affordable Care Act does have one critical thing in common with the kind of legislation the Court tends to strike down: The legislative coalition that passed the ACA could no longer be reassembled. So it is a very real possibility.

It comes down to how the votes will stack up. Five are completely predictable and another nearly so. Justices Stephen Breyer and Ruth Bader Ginsburg (neither of whom have ever ruled that an act of Congress was unconstitutional based on commerce-clause grounds) along with Elena Kagan and Sonia Sotomayor (appointed by the president, who favored the legislation, and are both liberals who would be extremely unlikely to strike down any federal act) are certain to rule in favor the law. Justice Clarence Thomas, committed to a more restricted federal government than any justice since before World War II, is equally certain to hold the legislation unconstitutional. Justice Samuel Alito has not cast enough votes in federalism cases to be quite as sure that he’ll vote to strike, but because he's the Court’s most reliable Republican—as opposed to conservative—ideologue, it would be shocking if he did not join Thomas.

The ACA and the existing constitutional order, then, will need at least one vote from the remaining three justices. Some progressives are optimistic about Justice Antonin Scalia, who is more idiosyncratic in his rulings than Alito on issues of marginal importance to movement conservatives; he is much less committed to a limited federal government than Thomas. He voted against the states in the last big commerce-clause case, Gonzales v. Raich, in which the Court upheld the federal prosecution of Californians growing medical marijuana for personal use as permitted by state law. Despite this, I think Scalia is nearly as certain a vote against the ACA as Alito. This case does involve an issue of central importance to movement conservatives, and Scalia will look much less favorably on an act of Congress despised by most Republicans than on draconian Bush administration action against pot-smoking California hippies.

As often happens given that in most constitutional cases he’s the only possible swing vote on an otherwise divided Court, this case will come down to Anthony Kennedy. And it’s nearly impossible to predict his vote. He is also not a Thomas-style federalist, and he’s much less of a Republican culture warrior than Scalia. But he also has a libertarian streak that could surface here. Before oral argument, when one can gauge his attitude toward the legal arguments based on his questions, it’s difficult to predict which way he (and hence the Court) will go.

How will it matter?

If the Court upholds the bill or declines to decide the constitutionality of the law because it holds that the suit is invalid under the Injunction Act, a federal law that prohibits lawsuits seeking to stop taxes from being collected, the political impact of the decision would be minimal. It might provide a small boost to Republicans activists, but since Republicans well be highly mobilized against an incumbent in a bad economy anyway, such effects are likely to be marginal.

If the Court strikes down the legislation, the political impact will depend on how the Court does it. The Court has allocated 90 minutes just to the question of whether the individual mandate can be “severed” from the rest of the bill—that is, whether the mandate can be ruled unconstitutional while the rest is kept in place. Ruling that the mandate can be severed from the rest of the ACA would appeal to Kennedy and Roberts for two reasons: They like “minimalist” opinions that don’t go beyond what is necessary, and striking down the relatively unpopular individual mandate would probably not attract a great deal of public opposition. On the other hand, from a Republican perspective, striking down the mandate would have unpredictable consequences. Without it, the ban on discriminating against people with pre-existing conditions in the ACA would potentially destroy the private insurance industry while creating a disastrous insurance price spiral. This could lead to a near-complete repeal of the bill—but it could also lead to a public insurance system. Kennedy must be worried about this possibility.

Striking down most or all of the Affordable Care Act, conversely, would amount to a major conservative policy victory. But by striking down many popular provisions and denying any chance of a progressive health-care reform for the foreseeable future, it would attract a great deal of political opposition and possibly mobilize enough Democratic voters to affect the presidential election. Since Republicans are virtually guaranteed to keep enough votes in the Senate to thwart political retaliation and may be in control of the House of Representatives and the White House by 2013, however, the Court may well decide to take that risk.

It is possible that the Court will uphold the Affordable Care Act, and the re-election of Obama will cause the issue to largely blow over. But the possibility that the Court will strike the biggest blow against Congress in many decades and produce an extremely contentious constitutional battle over the future of congressional power is very real.