POLITICS APRIL 20, 2012
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
The Affordable Care Act is the most important law enacted in at least a generation—the culmination of a reform effort, nearly a century in the making, to establish health care as a universal right. Now nine Supreme Court justices have the power to strike it down. Their decision, of course, will have major implications for the future of our country’s health care system. But it will also have major implications for how Americans view the Supreme Court.
The architects of American government wanted to protect individual liberty, from overzealous majorities and an overbearing federal government, so they insulated the Court from political influence and gave it final authority to say whether laws were constitutional. But overruling democratically elected officials is an inherently audacious act, which is why the justices must use their power in this regard thoughtfully. They should presume laws to be constitutional, just as trial courts presume accused criminals to be innocent. And they should at least try to put aside partisan loyalties and policy preferences, making a good faith effort to discern the Constitution’s meaning and to respect precedents.
Supreme Court justices have fallen short of this standard before, most recently in Bush v. Gore, a decision so self-evidently partisan and specious that the majority warned lower courts not to apply its logic in other cases. A ruling against the Affordable Care Act would also be unfounded—and perhaps even more damaging to the Court’s reputation.
The crux of the case is the law’s “individual mandate,” the requirement that nearly all Americans obtain health insurance or pay a fee to the government. Critics say it is an unprecedented violation of liberty—an argument few experts took seriously until very recently, and for good reason. Even the critics acknowledge that the individual mandate would be constitutional if only the law’s architects had called it a “tax.” They acknowledge that the mandate would be constitutional if applied at the moment people needed medical care, rather than beforehand. And they acknowledge that government-run insurance programs, like Medicare and Social Security, are perfectly constitutional—even though they are, by their nature, more disruptive of individual liberty than the mandate. Meanwhile, even some prominent conservatives believe the law is constitutional, consistent with precedents about federal power that date all the way back to the era of Chief Justice John Marshall. Among those conservatives are two of the nation’s most respected jurists, each of whom ruled in favor of the law when it came before their courtrooms last year.
The last time the Supreme Court took it upon itself to consider, and reject, such sweeping economic legislation was the early twentieth century, during the so-called Lochner era, when the Court invalidated laws that, among other things, established a minimum wage and prohibited child labor. Those decisions may still be celebrated by a very narrow subset of the conservative legal world; but they are not remembered fondly by mainstream historians or viewed as good precedent by the vast majority of legal thinkers. Are Justice Anthony Kennedy and Chief Justice John Roberts—the two apparent swing votes in this case—really prepared to return the Court to this tradition?
In recent years, American government has become gradually more dysfunctional, as lawmakers have dispensed with traditions like allowing majorities to rule in the Senate or putting some issues, such as lifting the nation’s debt ceiling, beyond partisan politics. The question of who is to blame for the collapse of these mores is a longer discussion for another time. (We place more blame on the right than on the left, though we certainly acknowledge that liberals have played a role.) What is beyond dispute, however, is that a five-to-four decision to invalidate the Affordable Care Act would signal another departure from governing mores—only this time it would be judges, rather than politicians, wreaking the havoc. It would further diminish the Court’s standing, in and out of Washington, and haunt the justices the next time they feel a law—whether a conservative or liberal one—demands judicial rebuke.
The policy consequences of overturning the Affordable Care Act, even in part, would be severe: Many millions of Americans would lose access to health insurance while many more would lose crucial consumer and financial protections. For some, it might literally be the difference between life and death. But the long-term effects on the Supreme Court’s legitimacy could also be devastating. If the former doesn’t sway members of the Court’s conservative majority, perhaps the latter will.
This article appeared in the May 10, 2012 issue of the magazine.
35 comments
they acknowledge that government-run insurance programs, like Medicare and Social Security, are perfectly constitutional I don't. Were they tossed out as well, there would soon be an amendment making it proper--Americans are addicted to their welfare state. So be it.
- karlwk
April 24, 2012 at 10:31pm
Time travel DOES exist. Before me I see a comment posted from at least 200 years ago, just now appearing in our time!
- skahn
May 1, 2012 at 12:03am
The state has some responsibility for the welfare of its citizens. What that responsibility is exactly, or how far it goes or should go, is open to legitimate debate. But a state that proclaims no responsibility is simply a guy renting out the stadium for a game to the death with no rules.
- ironyroad
May 1, 2012 at 1:50am
The clerks need to take some responsibility here. Their careers won't be adversely affected by a walkout. They'll still teach at the Top Ten, go to the megafirms, whatever. We need to see some of them walking out the door.
- Mikelawyr22
May 1, 2012 at 8:19am
I agree with Ironyroad and as a Canadian am relatively satisfied with our single payer system which allows a touch of for profit at the margins. And I can't fathom an enlightened society that doesn't have a principled view of basic health care as a kind of right. But all that said, why do I get the feeling that this editorial's moral urging is selective? And why do I think that were the issue to be a policy that strongly offended editorial moral sensibility, all the talk of how the court should rule and what it's role is would be happily used in the service of striking down that policy as embedded in law?
- basman
May 1, 2012 at 9:33am
As if this editorial will cause the right-wing majority to think twice about overturning the law. No one but a tiny minority has the faintest idea of the constitutional issue at stake. If the Supreme Court overturns ACA, the overwhelming majority of the population will be left with the impression that Obama and the Democrats violated the Constitution, not that the Supreme Court trampled on precedent to achieve an unprincipled, politically motivated result.
- BillW
May 1, 2012 at 9:34am
skahn Laughter. The executive branch has jurisdiction over the health of its citizens, at least that was an the issue in a 1609 English case well known to at least John Adams and we have inherited the powers of the Crown. If the Supreme Court wants to take that away, they won't find justification for it from the framers.
- Nusholtz
May 1, 2012 at 9:42am
skahn Laughter. The executive branch has jurisdiction over the health of its citizens, at least that was an the issue in a 1609 English case well known to at least John Adams and we have inherited the powers of the Crown. If the Supreme Court wants to take that away, they won't find justification for it from the framers.
- Nusholtz
May 1, 2012 at 9:42am
skahn Laughter. The executive branch has jurisdiction over the health of its citizens, at least that was an the issue in a 1609 English case well known to at least John Adams and we have inherited the powers of the Crown. If the Supreme Court wants to take that away, they won't find justification for it from the framers.
- Nusholtz
May 1, 2012 at 9:42am
"And they acknowledge that government-run insurance programs, like Medicare and Social Security, are perfectly constitutional—even though they are, by their nature, more disruptive of individual liberty than the mandate." This particular argument is grotesque nonsense that should never be confused with rational jurisprudence. What are the Editors thinking? War is vastly more disruptive of individual liberty than criminalizing use of the f*** word in public. Yet, the making of war is perfectly constitutional and putting someone in jail for saying f*** clearly isn't. Just because the constitution gives the federal government great powers in one realm does not require an assumption of bleed over into every other realm.
- jkodak
May 1, 2012 at 9:52am
No fear, the Supremes will do the right thing and overturn ObamaCare. the individual mandate is without precedent, Obama was against it before he flip-flopped, and the commerce clause doesn't give Gov unlimited power. And as usual, the moonbat cheerleaders at TNR get it exactly wrong, ObamaCare and the Individual mandate are NOT supported by the vast non-Moonbat majority of US citizens Preserving the SCOTUS requires them to strike down ObamaCare.
- mr_rationale
May 1, 2012 at 10:22am
Nusholtz, I appreciate the laughter, and the historical legal expertise (far superior to my skimpy knowledge in the area), but please don't choke to death on your mirth.
- skahn
May 1, 2012 at 12:22pm
I already refer to it as the Kangaroo Court. We'll see.
- Erik_S
May 1, 2012 at 1:01pm
"Just because the constitution gives the federal government great powers in one realm does not require an assumption of bleed over into every other realm." True, but it's at least an implicit line in the administration's argument -- and there's clearly a common-sense validity to it -- that health policy and the nature of the insurance model are not in another "realm" from Medicare and SS. It would certainly be crazy if the ACA went down because the administration was too scared to use the word "tax."
- ironyroad
May 1, 2012 at 1:27pm
This administration has been trying desperately to be bi-partisan, to reach across the aisle and reunite the United States. But, Obama has been slapped in the face repeatedly and so have Democrats in general and even moderates who happen to be Republican. I'm glad the Editors mentioned Bush v Gore. That deserves more comment. All these years later I continue to be shocked the SCOTUS inserted its opinion into a national election in which there was a majority victory by one candidate and a razor thin and disputed victory in Florida, for electoral votes only; and that the Florida court was so egregiously trampled on. See "states rights" works both ways. Usually we see "states rights" invoked when somebody, like Texas, wants to discriminate against somebody (in this case women) (or enslave people; whatever). So why did it not also apply in the case of Bush v Gore? The whole argument is political and that's the problem that's evolved with the Court. It's become so obviously partisan, and rather radically right wing at that; how can the people trust it any longer? Cutting to the chase they effectively decided a Presidential election, overruling both people and state court and in fact the due process of law in Florida; it's my understanding that there are legal remedies for disputed Federal elections and those weren't honored either. Why not?
- Sophia
May 1, 2012 at 1:39pm
As to the "broccoli" argument from Justice Scalia: No one ever needs broccoli on an emergency basis to avoid death. Grocery stores are not required to give free broccoli to people who can't pay for it. And broccoli is cheap.
- Vekert
May 1, 2012 at 2:12pm
Significant constitutional cases, such as ACA, are inherently political; always have been, always will be. The individual Justices are sensitive to the politics because the power of the Court is dependent on deference, deference arising from respect, since the Court has neither an army nor a purse. I suggest that the Justices need not be reminded, and that an appeal to the many policy reasons for upholding ACA would be more effective; indeed, a challenge to the Court's legitimacy could well have the opposite of the intended effect. My prediction has been and continues to be that CJ Roberts will join with the more moderate Justices and uphold ACA, but he will write an opinion that circumscribes the power of the federal government to regulate business under the commerce clause. By staking ACA's survival, and indirectly Obama's presidency, on the mandate, the mandate that candidate Obama opposed, well-intentioned supporters of (near) universal coverage have left open the very real possibility of a weakened federal government.
- rayward
May 1, 2012 at 2:35pm
Sorry, but there is no Santa Claus, Tooth Fairy, or non-political SCOTUS. SCOTUS can appear to be non-political when Congress and the general public have a majority in the political center and there are large areas of general agreement. That is NOT the case today-- and has not been the case in some past decades (say ~1930-1940, 1860-1880, 1825-1835, 1800-1815). In such eras, it does little good to bemoan the reality of the era. Compromise is really not possible-- and the only solution is the acquisition and use of politial power. BHO might achieve the former-- he is very unlikely to achieve the latter.
- drofnats1
May 1, 2012 at 3:29pm
It is black-letter law that acts of Congress enjoy a presumption of constitutionality that must be overcome by a strong showing. This does not have the same source as the presumption of innocence, but the editors are simply making an analogy to convey a sense of what a legal presumption means. Should not be taken too literally. I agree with rayward pretty much across the board, unless Kennedy jumps ship so that Roberts could be part of a conservative majority. Otherwise, I think it is a 6-3 decision. The only interesting question in my mind is what sort of lying, hypocritical knots Scalia will twist himself into to try and square the outcome he votes for with his ostensible jurisprudence. Should be quite a show.
- roidubouloi
May 1, 2012 at 4:09pm
I disagree with drof to some extent. While there is an inevitable political dimension to decisions of the Supreme Court, I do not think that conscientious judging is the same thing as legislating. I don't think there is much about Scalia and company's decisionmaking that could fairly be described as conscientious judging.
- roidubouloi
May 1, 2012 at 4:11pm
Moreover, jkodak, the primary argument that the ACA mandate exceeds Congress' power under the commerce clause is that it is an unprecedented intrusion on individual liberty. That argument is preposterous on its face, but it is rendered all the more ludicrous by the fact that similar federal schemes such as Medicare and SS could certainly be construed as imposing a greater intrusion on individual liberty and yet are clearly regarded as constitutional. Dhurtado
- NR143296
May 1, 2012 at 7:27pm
skahn It hung and I kept pressing the button. OOops.
- Nusholtz
May 1, 2012 at 7:36pm
Nusholtz, my motto for such occasions is: "If this is the worst thing that happens to me today, I can deal with it." (I doubt that one human out of 100 can resist pushing a button, especially if it has a label stating "Do not under any conditions push this button.")
- skahn
May 1, 2012 at 10:40pm
The presumption that legislation enacted by the elected national legislature is constitutional is an essential corollary to, and limitation on, the unelected Court's assumption of power to declare legislation unconstitutional. Otherwise, the Court sits as a super-legislature that can overturn legislation for whatever reason it chooses. The Supreme Court rejected that role during the New Deal, after a long period during which the Court simply tossed out legislation that didn't conform to the majority's right-wing social and economic views. That was the point of Obama's entirely valid--and wrongly criticized--remarks, and that's why overturning the ACA, if the Court decides to do so, will be an unprincipled seizure of naked power. But don't expect that to restrain the current right-wing majority.
- BillW
May 1, 2012 at 11:38pm
NR143296, It is only preposterous on its face if the power to regulate in the policy realm always implies the power to mandate. It clearly does not. Does the power to regulate abortion imply the power mandate abortion? Does the power the regulate gun purchases imply the power to mandate gun purchases? To date, only Akhil Amar has been crazy enough to say yes. Does the power to regulate the building of a nuclear power plant imply the authority to order someone to build one?
- jkodak
May 2, 2012 at 11:50am
Good grief. The court's reputation was held in the balance back in the 1930's when FDR pushed them to overturn a century's worth of rulings. ... Court sits as a super-legislature that can overturn legislation for whatever reason it chooses. Rubbish. Congress has made many attacks on the freedom of the press, etc.; do you really want the Court to always defer to the democratic process? Article VI requires the Court to mind the Constitution. So long as they do so in a logical fashion, it is the ratification and amendments of the past that serve as the "super-legislature" you so decry--and it does so by design.
- karlwk
May 2, 2012 at 3:17pm
My reaction to the general argument of the editorial is the same visceral one that I get when I hear leaders of either party say that we have to continue our war with (insert favorite war of choice here) because American credibility/prestige would be seriously diminished... Decide based on the facts/policy/politics/convolutions of the chicken entrails, but enough with the diminished reputation theorem already.
- Yossarian
May 2, 2012 at 5:15pm
But karl, there is a difference between Congress attacking freedom of the press in some shape or form and Congress passing major pieces of reforming legislation such as national parks, mining safely, civil rights, Medicare, the ADA, and the like. There is not a basic constitutional right being infringed by the regulation of mining operations to see that the workers aren't in mortal danger due to the profit-interests of the owner. I think there is, in fact, a danger (not necessarily coming originally from the Court itself) of turning everything into a constitutional question in which "rights" are laid out in extreme ways that seem to damage a healthy political pragmatism as well as notions of reciprocity and mutuality -- except, of course, when it comes to rights such as those of independent labor representation.
- ironyroad
May 2, 2012 at 5:41pm
jkodak: "It is only preposterous on its face if the power to regulate in the policy realm always implies the power to mandate. It clearly does not. Does the power to regulate abortion imply the power mandate abortion? Does the power the regulate gun purchases imply the power to mandate gun purchases? To date, only Akhil Amar has been crazy enough to say yes. Does the power to regulate the building of a nuclear power plant imply the authority to order someone to build one?" The answer to those questions is obviously "no." But the questions are a non sequitur with regard to the proposition that the ACA mandate is an unprecedented intrusion on personal librerty. I am not here contending that the commerce clause authorizes the ACA mandate (though I think that under current precedent it does). I am responding to the argument that the ACA mandate is unconstitutional because it is an unprecedented intrusion on personal liberty. That is patently false. That more burdensome intrusions on personal liberty might have occurred under constitutional authorizations other than the commerce clause does not make it true that the ACA mandate is an inprecedented intrustion on personal liberty. Dhurtado
- NR143296
May 2, 2012 at 9:09pm
ironyroad, I can't agree. Telling people they must go to prison if they don't buy into ObamaCare, etc. strikes me as a basic wrong. It's more than that, though; I don't think the court should have permitted Social Security back in the '30s. They should have forced the issue into the amendment process, a very political process, but necessary to establish what the agreed on bounds to government should be. Had they done so, we wouldn't be where we are with the Left and the Right constantly trying to tip the "interpretation" their way. Instead, we'd have an amendment clearly expanding the powers of government -- and I have no doubt the people today want their welfare schemes!
- karlwk
May 2, 2012 at 9:27pm
Karl- The ACA does not provide that one must go to prison if they don't buy into Obamacare. It provides that one must pay a tax penalty if they don't purchase insurance. If you still think that is a "basic wrong," so be it. But let's not shoot at straw men. It is not functionally different than paying a tax "penalty" if you don't take a mortgage on a house. Dhurtado
- NR143296
May 2, 2012 at 10:14pm
Try not paying the "tax" and see where it lands you. You pay the tax because prison is the alternative--no difference then.
- karlwk
May 2, 2012 at 11:13pm
I think that is not correct Karl. I believe there is no provision to enforce the penalty by criminal sanctions. Do you have information otherwise? Dhurtado
- NR143296
May 3, 2012 at 8:09am
@NR, When conservatives say the ACA is an unpredented intrusion into personal liberty, they generally mean, I think, that the commerce clause doesn't support it. Your argument that there are even bigger impositions on liberty elsewhere that are clearly constitutional is something most conservatives would probably concede.
- jkodak
May 3, 2012 at 9:57am
Dhurtado, come to think of it, no. A law with no tooth?; perhaps to get it passed it is so. I'll back down.
- karlwk
May 3, 2012 at 10:32am