Jon Cohn has a good post about a subject that’s on a lot of minds given the hostile reception the ACA received at the Supreme Court this week: judicial legitimacy. It’s worth unpacking the different things this might mean. Certainly, from the standpoint of my personal normative evaluation, I agree with Jon that a decision striking down the ACA would not be legitimate. If you’re going to strike down the centerpiece legislation of an incumbent administration, you’d better have better arguments than were on display over the last three days. (I especially like the point that “if the justices strike down the Affordable Care Act, they would be stopping Congress and the President from achieving a constitutional goal via constitutional means just because they didn’t use constitutional phrasing to describe it.”)
Another element of the question, however, is whether a decision striking down the ACA would significantly effect the legitimacy of the Court among the general public. My guess is that it would not. Certainly, I doubt that the 5-4 margin would matter, and nor do I think the fact that the ideological fault lines of the court now map precisely onto partisan divides means much. I think Sandy Levinson is fundamentally right here:
So, when the five Republican conservatives decide how to vote, will they genuinely have to worry about a significant “backlash” against the Court in the country at large? The answer is almost definitely not. After all, the Republican base would praise the decision as “just what the Constitution means.” Another percentage would say something like “I ‘m not sure I agree with the decision, but, hey, I’m not a lawyer, and we hire the Supreme Court to tell us what the Constitution means, and even if they sometimes make mistakes, the country is blessed to have such an institution, and we should all accept its conclusion and move on.” Even partisan Democrats are likely only to fulminate, but how many will say, “You know, I think that Oliver Wendell Holmes and Mark Tushnet have gotten it right, and we should simply eliminate the very power of judicial review, at least with regard to any federal legislation. After all, we can always vote the congressional scoundrels out, but we don’t have that possibility with the politicians in robes who constitute the Supreme Court”?
Really, striking down the ACA isn’t even testing the far reaches of the Court’s power. The Court would have substantial support in Congress and, at least as of now, would appear to have the support of the majority of the public. I wish it weren’t so, but I don’t think the Court would face any significant loss of public legitimacy should they strike down the ACA.
I have some thoughts at CIF about why the challengers to the ACA simultaneously argue that the mandate isn’t a regulation of interstate commerce and is so essential to a concededly constitutionalism regulation of interstate commerce that it can’t be severed:
Why would Clement advance this self-refuting argument? It tells us two things. First of all, there is a hidden libertarian agenda behind the modest-seeming argument that the mandate and only the mandate is unconstitutional. It’s no coincidence that one of the prime movers behind the constitutional challenge to the ACA – the esteemed Georgetown Law professor, Randy Barnett – is a radical libertarian who considers most of the modern regulatory state unconstitutional. The argument against the mandate is, at bottom, a libertarian one – comparable to pre-New Deal arguments that minimum wage laws and federal pensions are unconstitutional. It is necessary to conceal this to have any chance of getting five votes at the court, but the severance argument gives away the show.
There are also political reasons for opponents of the ACA to argue that the mandate cannot be severed from the rest of the statute. American political institutions, with their high number of veto points, very strongly privilege the status quo. Striking down the whole ACA would revert us to the status quo ante, in which the privileged interests favored by Republicans would make major changes to the American healthcare system nearly impossible.
Just striking down the mandate while leaving provisions such as the ban on discrimination based on pre-existing conditions, however, would create a status quo in which insurance companies would be desperate for change because they would be faced with a vicious circle in which healthy people fled the system, leading to ever-higher costs for everyone else. Nobody can predict what kind of fix Congress would create – it would depend on subsequent elections – but the challengers of the ACA could be faced with only a half-win or even a Pyrrhic victory. So, they would prefer that the act be struck down in its entirety.
The argument is really Lochner in disguise, which can also be seen in the recycled Glenn Beck Scalia and Alito favored us with throughout the oral argument.
One more point is that I would be cautious about excessive optimism should the mandate and only the mandate be struck down. Barring an unusual Democratic landslide or huge transformations in American politics the fix would be far more likely to be a half-assed, weaker, less equitable version of the ACA than single-payer. But the outcome would almost certainly be better than if the bill was struck down in its entirety.
Even if the ACA narrowly survives, David Frum is in for a rude awakening:
Even though the Solicitor General reportedly choked today, that doesn’t change the fact that the conservatives on the Court have spent most of their intellectual lives railing against judicial activism.
Well, this is technically true; conservatives on the court (and much more so off the court) do spend a lot of time railing against “judicial activism.” What the conservatives on the Court absolutely don’t do is oppose “judicial activism” in practice. And in this case, Scalia is virtually certain to vote to strike the law down.
One thing that the oral arguments in this case should accomplish is to make clear that when the Academy of the Overrated opens Scalia will get in on the first ballot. The performance of both Scalia and Alito throughout the oral arguments was an embarrassment — a succession of cranky and ignorant right-wing policy pronouncements and irrelevant hypotheticals with no pretense of engaging with the case law. Scalia’s attempt to invent a category of legislation that could be “necessary” but not “proper” — apparently because there might be alternative legislation that would be closer to the policy preferences Scalia got from listening to a third-rate winger talk show — was particularly special. If the Court wants to overrule McCulloch v. Maryland it really should do so explicitly…
UPDATE: ”On Tuesday, [Scalia] pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma.”
After going back and forth for a year I ended up being somewhat more pessimistic than a lot of liberal observers before the argument, so I perhaps wasn’t as shaken as they were. (I agree with Jon Cohn did the oral argument did not at all make it clear that Kennedy will vote to strike the ACA, although it made clear that he was seriously entertaining the possibility.) So I’m about where I was — it comes down to Kennedy, and I don’t see how anyone can claim to know what he’ll do. But I do think that some pundits, especially on the political side, misunderstood the role precedent will play in the case:
First of all, I think (particularly among political writers) there’s an important misunderstanding. Even if we concede that the ACA is unquestionably constitutional under the Court’s precedents—something that I don’t think is strictly accurate, although they strongly point in that direction—it’s important to remember that the Supreme Court is not bound by its own precedents. Lower courts are, and for that reason some of the District Court opinions striking down the ACA were embarrassingly feeble. But the Supreme Court does not violate any legal practice by limiting or overruling its own precedents. The law allows enough discretion for the Court to use its powers unwisely in this case, and it might. It is true that even if it is legally permitted to do so, the Supreme Court is very reluctant to overrule major precedents. Even after four decades of Republican-dominated Supreme Courts, the major precedents of the Warren and early Burger Courts remain good law. There is no question in my mind that if the argument being made against the ACA required the Supreme Court to overrule Wickard v. Filburn and return the country to a pre-New Deal conception of the Commerce Clause, it would not do so. But the genius of the argument concocted by the ACA’s opponents is that it does not require the Court to explicitly overrule any existing precedent. I think that the distinction between “activity” and “inactivity” is utterly nonsensical as applied to the healthcare market, and Steven Breyer did a good job of explaining why at yesterday’s oral argument. But it provides a way for the Court to strike down this particular bill without threatening the fundamental structure of the New Deal.
So nothing prevents the Court from striking the law if they want to, and a majority might want to. Hopefully Kennedy will step back from the brink.
Meanwhile, if you want to get into the weeds of the oral arguments, I probably don’t need to tell you this but Lithwick has been brilliant (day one, day two.)
Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional:
If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.
And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.
Absolutely correct! In other words, the mandate is a necessary and proper part of a regulatory framework all parties concede is constitutional, and hence should be upheld. I’m glad we’ve reached a consensus here.
Much more later about today’s argument, but I’d like to address this particular slippery slope hypothetical from Scalia, responding to the government’s argument about the necessity of the mandate to the plainly constitutional regulatory framework established by the rest of the act:
General Verrilli, you -you could say that about buying a car. If — if people don’t buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car.
I’m sure most of you have spotted the problem here, but there’s an obvious difference: the taxpayers aren’t obligated to buy you a care if you need one. You can choose to not participate in the market for cars; you can’t choose to not to participate in the market for health care because emergency rooms have to treat you.
Not that I think the slippery slope argument would prove much of anything even if the analogy was valid, but it’s not.
Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me.
Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have even asked for the question to be briefed.
Looking forward to tomorrow, Sarah Kliff’s primer is very useful.
I have a piece up at the Prospect about the obvious constitutionality of the Affordable Care Act. In particular, the “activity/inactivity” distinction cooked up by conservatives to get the ACA ruled unconstitutional 1)has no basis in the text of the Constitution or Supreme Court precedent and 2)is particularly inapplicable in the context of health care:
The first problem with the argument is the assumption that people without insurance are choosing not to participate in the market for health care. This argument might have some validity if we lived in a libertarian dystopia in which people without health insurance were left to die in the case of a medical emergency. But this is not the case. As the administration brief points out, “for decades, state and federal laws—reflecting deeply rooted societal values—have required emergency rooms to stabilize patients who arrive with an emergency condition, and common-law and ethical duties restrict a physician’s ability to terminate a patient-physician relationship.” The uninsured consumed nearly $120 billion in medical services in the last year for which there is good data (2008). People who go without medical insurance, then, are not choosing to exclude themselves from the health-care market in any meaningful sense; as the Obama administration brief reads, “[i]ndividuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume.” Not only is this free riding not some kind of constitutionally protected liberty, it represents exactly the kind of collective-action problem that the commerce clause was designed to give the federal government the ability to address.
Another point worth adding is that people making the ad hoc arguments about the unconstitutionality of the ACA have claimed that the regulation of “inactivity” is especially dangerous because it lacks a “limiting principle” — allegedly, if the government can regulate your “inactive” choice to let taxpayers pay your emergency medical care it can regulate anything. Leaving aside the fact that the argument is specious on its face, a limiting principle of course remains in place — U.S. v. Lopez. In Lopez, nothing direct economic or involving interstate markets was involved, and Congress provided no evidence that there were substantial indirect economic effects or that states were incompetent to deal with the problem. With respect to the ACA, conversely, the regulation is not merely rationally related to but essential to a broader regulatory framework that is almost universally conceded to be constitutional, and health insurance presents potential collective action problems that states would be unable to solve in light of federal action to end discriminatory insurance company practices. Upholding the ACA would do nothing to undermine the “limiting principle” actually established by the Rehnquist Court.
it turns out he’s somewhat opposed, if we can interpret “social programs led to the collapse of the British Empire” and “the British National Healthcare system is a devastating program that makes it dependent” as opposition. A couple summers ago I wrote a post here about the NHS, including notes comparing the per-capita GDP spent on health care (hint: it’s higher in the US), comparing outcome metrics (hint: better in the UK), and my own personal experience with the Health Service. All of which, charitably, is somewhat in disagreement with Santorum’s observations.
I love it when desperate politicians make shit up. Especially the line about how Thatcher lamented that the Health Service proved to be the reason that she “was never able to do what Reagan did to this country”.
Speaking of making shit up, I’m live on BBC radio within the hour. I wonder what they want?
Tonight, Politico hands Paul Ryan its award for Health Care Policymaker of the Year.
Because inside the Beltway, actually crafting useful policy that helps people is meaningless. No doubt it’s only matter of time before James Inhofe wins Environmental Policymaker of the Year and Michelle Bachmann walks home with a prize for GLBT Issues Policymaker of the Year!
As Paul mentioned, as expected the Supreme Court will be hearing the case. Perhaps the most interesting thing is that the Court will be having a longer-than-usual argument about the severability issue alone. I think this should make clear that there is a very real chance that the Supreme Court will strike down at least part of the bill, and also that the possibility of striking down the whole bill is in play.
The stakes of this issue are huge — I believe you would have to go back to the New Deal to find a central part of the domestic agenda of a new President struck down so quickly. More thoughts on this tomorrow.
...typically valuable summary by Liptak.
The interesting thing about the lead opinion is that it was written by Laurence Silberman, a judge with impeccable conservative credentials. As Jon says, it’s a straightforward but very strong opinion, and he’s particularly good on the meaningless of the “activity/inactivity” distinction.