To Buy Or Not To Buy?

From March 26 through March 28, the Supreme Court will hear oral arguments over the constitutionality of President Obama’s signature legislative achievement, the Affordable Care Act. Interestingly, the administration asked the Court to take up the case in this term, meaning that its ruling will come in June. The high-profile case could thus have major implications for both the presidential race and the legacy of the Roberts Court.
The law’s challengers—the National Federation of Independent Business and 26 states—contest the constitutionality of the requirement, known as the individual mandate, that most Americans buy health insurance or pay a fine. Their argument is that Congress has no power to “compel individuals to engage in commerce in order more effectively to regulate commerce.” They warn that if the government can force individuals to enter into a contract with a private company, it can force people to buy virtually anything (for example, it could force them to buy broccoli in the interest of promoting a healthy diet).
The Obama administration argues that “the Act and the pre-existing federal statutory structure on which it builds comprehensively address economic conduct having a substantial effect on interstate commerce and are therefore unquestionably within the scope of Congress’s commerce power.” According to this argument, individuals are never far from the insurance market because they could get sick or be injured in an accident and need care at any moment. Furthermore, the administration cites the Constitution’s Necessary and Proper Clause, arguing that the mandate is necessary in order to implement other clearly constitutional components of the law without raising health insurance costs.
Regarding the political impact, Dr. Robert Blendon, professor of health policy and political analysis at the Harvard School of Public Health and the Kennedy School of Government, argues that the decision will influence the public’s perception of “whose judgment is more accurate.” Blendon believes that the stakes are especially high on both sides since “President Obama is a constitutional lawyer and has stated that the law is definitely constitutional,” while “GOP leaders, especially GOP governors, have criticized the bill continuously, not just on its content, but saying it’s so clearly unconstitutional that they shouldn’t even bother to implement it.” Moreover, Blendon suggests that both Obama and his Republican opponent can use the case to “emphasize that the future of the Court could go in completely different directions” in the coming years, depending on who is able to appoint the next justices.
The ruling could also have a significant impact on the legacy of the Roberts Court. According to Harvard Law professor Richard Fallon, “if the Supreme Court were to hold the ACA unconstitutional, it would be the most important decision involving the reach of the constitutional powers of the federal government since 1937,” when the Court began to favor a broad interpretation of the Commerce Clause. Thus, Fallon says, “given that the Court has upheld all the big things Congress has done under the Commerce Clause since 1937, I would start with the expectation that those precedents would lay a foundation for upholding the ACA.” Harvard Law professor Laurence Tribe, in an editorial written last year, also argued that “There is every reason to believe that a strong, nonpartisan majority of justices” will uphold the law.
However, the Roberts Court has generally been regarded as conservative, and Fallon notes that, in potentially close decisions, it is important to view the Court as “a ‘they,’ not an ‘it’”—in other words, to consider the likely rulings of individual justices. Many experts, including Fallon, think that the administration starts with a 4-1 advantage, as the four “liberal” justices—Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—are almost certain to uphold the ACA, while the only certain “no” is Justice Clarence Thomas. The administration’s challenge, then, is to persuade at least one of the four remaining justices, all of whom are regarded as at least somewhat conservative. The best bet might be Justice Anthony Kennedy, who is often called the Court’s “swing vote,” even though he is more conservative than the previous “swing vote,” retired Justice Sandra Day O’Connor. Not surprisingly, both sides are tailoring their arguments to appeal to Kennedy.
Perhaps more surprisingly, the administration’s lawyers are also seeking the support of staunchly conservative Justice Antonin Scalia. Their brief frequently cites Scalia’s opinion in Gonzales v. Raich, in which he wrote that the Commerce Clause gave Congress the power to regulate the activity of a woman who wanted to grow medicinal marijuana in her home since the marijuana was “never more than an instant from the interstate market.” The administration argues that the same logic applies in this case, since individuals are potentially never more than an instant away from needing health care. The administration’s Necessary and Proper argument also cites the portion of Scalia’s Raich opinion where he wrote that the government’s intervention was a “necessary and proper” means of carrying out its power to criminalize drug use.
Blendon observes that Republicans will feel especially angry and betrayed if a conservative, Republican-appointed justice like Scalia votes to uphold the ACA. In his op-ed, Tribe suggests that this outcome is quite possible, writing that, “To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.” In a further pitch to Scalia, the administration is citing an opinion in defense of the individual mandate written by 6th Circuit Court of Appeals Judge Jeffrey Sutton, a former law clerk for Scalia of whom Scalia has spoken highly.
Ultimately, there seem to be four basic ways that the Court could rule. Obviously, it could either uphold the law in its entirety (as the 6th Circuit Court of Appeals did) or strike it down in its entirety (as U.S. District Judge Roger Vinson did). However, the Court could also rule (as did the 11th Circuit Court of Appeals) that the individual mandate is unconstitutional, but that the mandate is severable from the rest of the law. The administration argues that most of the law’s other reforms should stand, even if the mandate falls, except for two provisions. Specifically, the administration considers the provision prohibiting insurance companies from discriminating based on preexisting conditions and the rule prohibiting insurers from charging individuals higher premiums based on their medical history both to be inseverable from the mandate. As Tribe writes, these provisions “would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool.” Finally, the Supreme Court could adopt the logic of the 4th Circuit Court of Appeals. This court ducked the constitutional debate by throwing out the case on the grounds that the mandate’s penalty for not buying health insurance is really a tax, meaning that, under the Anti-Injunction Act, a court cannot rule on the mandate until it goes into effect. If the Supreme Court goes this route, a ruling would be postponed until well after the 2012 elections. Blendon, though, sees only a “very small chance” of this occurring, reasoning that if the Court intended to simply use the Anti-Injunction Act to punt on the issue, it would not have scheduled three days of oral argument.
Assuming that the Supreme Court will not use the Anti-Injunction Act to postpone the decision, the ruling could have a major impact on the election. Blendon predicts that the ruling will “give a great bump” to whichever side wins. On the flipside, Blendon suggests that the losing side does not have “anything to gain” by bashing the Court, since it is more popular than either of the political branches. The Republicans might be put in an especially difficult position if the ACA is upheld, given the conservative reputation of the Roberts Court. Blendon predicts that, in this event, Republicans will “change their argument, start arguing that the bill is a deficit killer, and stop talking about the constitutionality.”
Whether from the standpoint of a constitutional scholar, a political scientist, or anybody in between, the case is undoubtedly one of the most significant to be handed down by the Roberts Court. The justices seem to recognize this, as they have decided to take the rare step of releasing same-day audio of the oral arguments, rather than waiting until the end of the week to release the audio. It is perhaps appropriate that the first (and one of the few) cases in which same-day audio was released was Bush v. Gore. While the impact of this decision on the 2012 race may be a bit less direct, it promises to be significant.
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