I have a piece up at the Prospect responding to Orin Kerr’s assessment of the various ways on which a decision striking down the ACA could be viewed as “judicial activism.” My short answer is that in any sense of the term except for the abjectly useless tautological one (i.e. any decision I like can’t be “judicial activism”), it’s obviously judicial activism.
I did want to emphasize our major point of disagreement — whether striking down the ACA would be “judicial activism” in the sense of enlarging judicial authority versus the legislatures. Kerr, assuming (correctly I think) that the Court would strike the law down with a relatively “minimalist” decision based on the “activity/inactivity” distinction, says “no,” because Congress would be able to achieve the same ends with some minor technical changes. I argue that this fundamentally misreads the actually existing American legislative process and should also fatally undermine the substantive argument against the ACA:
I have one minor and one major objection here. The minor one is that I’m not convinced that a decision based on the “inactivity” distinction could be cabined quite as easily as Kerr assumes; the signal from the Supreme Court that it will start scrutinizing economic regulations in a way it hasn’t since the New Deal could well have broader effects. But even if we assume that this ticket will prove to be good for that day and train only, I have a bigger problem with No. 2, which ignores how congressional power actually works in the current system. Since control of any veto point is enough to stop Congress from acting, to say that Congress could just pursue the same goals by tweaking the system is highly misleading; this would be practically impossible for the foreseeable future. And since the liberty interest involved is ipso facto trivial (if Congress could pursue the same ends by enforcing the mandate as a “tax” rather than a “penalty,” how serious can the invasion of state sovereignty or individual freedom be?), this is exactly why striking down the ACA on these kinds of grounds would be so disturbing.
Should the Supreme Court strike down the centerpiece legislation of an incumbent administration, it would be the first time in more than 70 years since this has happened. To take this kind of extraordinary step surely requires some compelling interest being at stake. But the actual argument made by all of the challengers (with the exception of the radical libertarians who think the entire modern regulatory state is unconstitutional) is that Congress could not only pursue the same means with what are essentially terminological changes, it could pursue the same means through more coercive ends by just making Medicare universal. By definition, then, whatever violation of state sovereignty or individual liberty the ACA is supposed to be responsible for is negligible. It certainly can’t justify what would be an extraordinary act of judicial activism.
Incidentally, Eric Rauchway recently made the same mistake from the left. Yes, it would be great to see Congress just re-pass the same legislation in slightly different form and dare the Court to strike it down like it did in the 30s. But…well, I trust that the problem with the historical analogy is evident. Even if we had a Democratic Party Worth Its Salt and Obama wasn’t the Incredibly Disappointing First Democratic President to Govern From the Center Except For Every Other One (with the possible exception of LBJ on domestic policy), I’d love to hear how exactly the Democratic Party is supposed to re-pass the ACA while a Republican Party that provided zero votes to the original bill controls one legislative veto point outright and has sufficient votes to block any changes in the other.