The New Republic

This is weird because if you polled intellectuals before 2008 and asked them if the Supreme Court could find unconstitutional an individual mandate to purchase health insurance, many would be perplexed--sensibly, as this had been a staple of the conservative movement for two decades and would undermine the greater goals of solving national problems by government mandates with market approaches that weren't too hard on private businesses. In fact, that small minority of people who would have found it unconstitutional would have been led by people more liberal than Obama who saw a kindred spirit in the candidate and wanted to stop SS privatization, Medicare Advantage, and cap-and-trade in their tracks. We are in a strange place indeed, thanks to the small government movement. A root and branch finding that the ACA is unconstitutional would invalidate state-federal partnerships, the various work-arounds of the Commerce Clause that Congress uses to regulate at the national level, and the whole concept that the federal government has a responsibility to work to create economies of scale and simplify the national regulatory landscape. It would be an insidious cancer upon the federal government, akin to the anti-tax Proposition 13 in California.

- chaitless

April 2, 2012 at 10:41am

If Cohn can be repetitive, so can I. This case is not about the mandate; it's about the limit to the federal government's power to regulate business under the commerce clause. The mandate is merely a convenient vessel for movement conservatives to bring the larger issue to the Court; convenient because the mandate is unpopular and has connotations of oppression, so severely circumscribing the federal government's power while upholding the mandate would be a popular decision because it would please all sides. Indeed, I am convinced that few movement conservatives believed the Court would actually invalidate the mandate much less the entire ACA. It was only after the media began to speculate and ACA supporters began to panic that constitutional experts began to suggest that the Court might actually do both. In other words, what was highly unlikely at the outset, the Court invalidating the mandate and even the entire ACA, has become a possibility, some say a probability, as the result of the media and panic among ACA supporters. It's reminiscent of the Congressional deliberations of ACA! Nevertheless, I continue to predict that Roberts will join the majority and write the opinion upholding the mandate but circumscribing the federal government's power to regulate business under the commerce clause, an opinion that will hamper the government's ability to implement many of the most important provisions of ACA and, possibly, Dodd-Frank, including (under ACA) the minimum federal standard for health insurance (ACA's "other" mandate). So focused have supporters of ACA been on the mandate, that they have almost completely overlooked what will turn out to be the most important outcome of this case: a much more limited federal government power to regulate business.

- rayward

April 2, 2012 at 10:58am

Rayward- I don’t disagree with you regarding the history of how this issue developed, but I am curious as to how you think the Court could uphold the ACA or the “mandate” while at the same time articulating some limit on the scope of the Commerce Clause power that would severely circumscribe the government’s power to regulate business. I know that you can’t write a 50-100 page opinion, but can you give an example of the reasoning by which the Court might severely circumscribe the scope of the Commerce Clause while still upholding the ACA? Dhurtado

- NR143296

April 2, 2012 at 11:28am

Koppelman is on point here -- if the Supreme Court strikes down both the mandate and the whole ACA (or at least the major parts linked to the mandate), it would be political malpractice of the highest order for Obama not to run against the conservative Republican majority on the Court as unelected, unprincipled political hacks who are taking away popular benefits from the American people because their unseen political masters are telling them to do it. This is fundamentally different from Bush v. Gore and Citizens United. In Bush v. Gore, it is certainly true that Gore could have fought back against the decision and refused to accept the Court's ruling (or at least its reasoning), but there was a plausible response to such resistance that was acceptable to much of the American voting public -- namely, that a prolonged election battle was potentially destabilizing to the fair functioning of the Federal government and that continued further resistance was going to create a major problem in transition to a Bush Administration (assuming that, at the end of the day, a full-lenth Florida recount determined that Bush would prevail, even by one vote). Citizens United is certainly a different case, one which is a clear example of conservative judicial activism targeting a bipartisan law that was generally popular with the public. But, for starters, the popularity of that law was shallow while opposition to it was passionate and deeply rooted among conservative groups. Second, McCain-Feingold was already targeted for some time by conservative groups, who had won some victories striking down other provisions of the law before Citizens United came along. Finally, and most importantly, Citizens United struck down a law that had been on the books for over a decade -- there was little in the Court's decision that suggested that the challenge to that law was a response to immediate political events, and the arguments brought to bear against McCain Feingold were not resuscitated liberatrian rulings from 70+ years ago. Because the law was already established, and because the conservative assault on it had been going on for so long, the decision did not inspire much in the way of political opposition from anyone except the usual suspects of clean-government groups and some liberals. The major revulsion to Citizens United, at least on the left, has come in response to the impact of Super-PACs on Democratic incumbents in the 2010 elections and the performance of Super-PACs in the 2012 Republican race. But none of this has to do with a broad-based public perception that the Supreme Court was meddling in the political process, and substituting its opinion for that of Congress, dating back to the ruling itself. So a 5-4 decision against the ACA would be very different -- first, because it would be based on a fairly radical departure by the Court from even recent Commerce Clause jurisprudence, in which no Justice save Thomas has previously expressed views that would be reflected in a majority opinion. Second, it would be in response to a piece of legislation that was the major achievement of the Obama Administration and which was intended to constitute a major modification of an existing American industry. By throwing the grenade into the election, Republicans on the Court would be daring Obama to campaign against them and the law. How would he expect to pass up the offer, and pummel them throughout the campaign -- especially if actually popular provisions of the ACA are stricken, rather than just the mandate? And it's not like the Supreme Court can run its own ads defending the decision and its reasoning -- they would need to rely on Mitt Romney and Republican SuperPACs to do their work for them, and it has generally been difficult for politicians to defend controversial Supreme Court rulings than to attack them (ask any swing-state Democrat whether defending Roe v. Wade is something they want to do or something that they have to endure). A Court ruling against Citizens United would be less like a Lochner-era ruling and more like cases such as Schechter Poultry and Carter Coal, in which the "nine old men" of the Supereme Court struck down major initiatives of the New Deal as being incongruent with the then-libertarian interpretation of the Commerce Clause -- they one that Clarence Thomas wants to revive in all its glory. Not coincidentally, those decisions were perceived at the time (by their defenders and their opponents) as the only way conservative Republicans could effectively oppose the New Deal, given how prostrate the Republican Party was against Roosevelt in the aftermath of the 1932 election. FDR was certainly unhappy that the Court was standing in the way of programs like the National Recovery Act and the Bituminous Coal Conservation Act, which (like the ACA) were largely passed along party lines and loudly opposed by the era's conservative press (embodied by the Hearst papers, the Chicago Tribune and other publications). But he was happy to take the bait and assault the conservative Supreme Court as an impediment to national recovery in his 1936 re-election campaign, and again during the 1938 midterm elections. Who is to say that Obama cannot or will not do the same in the 2012 elections? If he was willing to publicly chide Justices for Citizens United during the 2010 SOTU, why should he pass up the opportunity to do it over and over on the campaign trail? Especially if he can accuse them of allowing insurance companies to discriminate against those with pre-existing conditions, rescind existing coverage at will, throw young adults off their parents' insurance plans and re-open the Medicare donut hole? And, from the Republican perspective, are these the sorts of things that Mitt Romney and his SuperPAC friends want to spend the upcoming election campaign defending?

- wildboy

April 2, 2012 at 11:47am

By the way -- this has been bugging me for some reason and I can't find a succinct answer -- what is the constitutional basis for federal authority in domestic aviation? What are the grounds for the FAA to police pilot training, aircraft maintenance standards etc in respect of (privately owned) airlines. Doesn't the federal government wield a biggish stick even in a "deregulated" business such as aviation? And if some Supreme Court finding made it difficult to enforce Dodd-Frank in respect of federal requirements for financial products, wouldn't it provide (at least in theory) an opening for airlines to get that burdensome FAA off their backs?

- ironyroad

April 2, 2012 at 12:51pm

Irony- Interstate travel has always been considered a quintessential example of interstate commerce. Dhutado

- NR143296

April 2, 2012 at 1:02pm

I should get my own tag right: Dhurtado

- NR143296

April 2, 2012 at 1:03pm

Maybe Cohn should have asked whether the media's legitimacy (or credibility) is at stake. The media's behavior in this case isn't much different from the media's behavior in the run-up to the Iraq war: in both cases, the media was easily manipulated, easily manipulated in the run-up to war because war is a better story than not and easily manipulated in this case because an activist Supreme Court invalidating ACA is a much better story than not. Sensationalism trumps accuracy; indeed, sensationalism drives history.

- rayward

April 2, 2012 at 2:05pm

A negative decision on the ACA would almost-certainly be a 5-4 decision, split along lines of who appointed which Justice. Tipping points are hard to predict in advance-- but the court is in trouble when it becomes a political issue. And political power changes. That was certainly the case for Dred Scott (the number of SCOTUS justices actually changed in the 1860's). It was also the case in 1936-37. The Congress may not have passed FDR's bill to once-again alter the number of SCOTUS justices (largely because Southern Dems feared appointees with more liberal views on race), but the SUPREMES got the message--- and changed their behavior.

- drofnats1

April 2, 2012 at 2:15pm

I understand the objection to the mandate, although I desperately hope for sweeping health care reform. It isn't on interstate commerce grounds either, simply, purely on personal grounds, I understand the objections of people who already don't have enough money being told they have to spend all these extra dollars on health insurance they may not personally need (and yes I understand and have argued the issues about increasing the insurance pool, etc.) But, what's to stop the insurance companies, even if they are ordered to provide insurance to high risk people, from jacking their rates through the roof? If that's part of the law - regulating rates - this needs to be argued for the benefit of the people so we understand the law better. That goes for doctors also, because my doctor seems to think nothing prevents the insurance companies from jacking their rates once they have created these insurance pools. Therefore whereas I understand the idea of pooling risk and making more money available to cover everybody, I get the objections to the mandate. Especially since it's a conservative idea in the first place, meant actually to help industry, privatize Social Security and so forth- part of me kind of hopes they strike down the mandate although morally I pray for health care reform as I say. I wish they'd gone straight to universal, single payer coverage. But, I think the insurance industry is just too powerful to tackle. Maybe this issue should be brought forward? People probably don't even think about that, about how much secondary influence, via investments in other businesses, the insurance industry truly wields. Regardless - if interstate commerce regulates travel, hence FAA, I don't understand why insurance, which is national in scope (most of the corporations are national aren't they?) isn't also open to such regulation by the Federal Government; ergo, where is the unconstitutionality? As far as the Court is concerned, I think Bush/Gore damaged the Court already, Citizens United also, and a purely partisan overthrow of ACA would do still more damage. Those who say the Court has remained popular despite Bush/Gore aren't listening, many of us remain outraged and were frightened by what happened in 2000. An overthrow of ACA despite all the issues had better be more than a 5/4 split, otherwise it really will appear the Court is merely political. Plus, people are getting hurt out here. So maybe a flawed bill is better than no bill. Rats. There doesn't seem to be a truly perfect answer here. But the Court in my opinion has already appeared to be be compromised.

- Sophia

April 2, 2012 at 2:19pm

I guess that's so, dhurt -- but then, that makes me wonder how did the opponents of the ACA argue that aspect of health care? It would seem to me that health care and health insurance are prima facie nation-spanning industries and services with so many obvious indicators -- transport of drugs and equipment to and from everywhere, organ transport and donation, accidents suffered while away from home -- of interstate commercial activity.

- ironyroad

April 2, 2012 at 2:28pm

A ruling against the ACA will result in frequent reminders of what was lost (and even potentially lost) with a hearty thank you to the 5 Justices who did this. It was one thing for Bush to win re-election to vindicate the Court, it is another to hear again and again about the problems the ACA was supposed to solve but was prevented from doing so, which is just beginning to happen with Citizens United.

- Nusholtz

April 2, 2012 at 2:33pm

It's tough to predict what produces a tipping point for public opinion on SCOTUS. It's tempting to speculate that todays 5-4 decision on strip searches might have more widespread objection and questioning of SCOTUS than Gore or Citizens United ever would. I'd be willing to bet that most everyone from Sophia or roi through rayward to Mr. Rat or Seattle will object to this 5-4 decision in divining what the founders originally intended.

- drofnats1

April 2, 2012 at 2:59pm

Koppelman hints at an interesting and ironic twist: a liberal Super-PAC aimed at trashing the Supreme Court via negative advertising. How sweet, and blessed by Citizens United to boot.

- JEFF FREY

April 2, 2012 at 4:34pm

One could argue that the legitimacy of the SC as being anything other than a partisan arena was undermined long ago. Certainly the right wing has been making this claim since Roe v. Wade, if not before -- it is part of their generation(s)-long complaint about "judicial activism". The vast majority of Supreme Court confirmations during my adult lifetime have been bitter political battles -- isn't this a reflection of the reality that the SC is is a partisan battleground, at least for the most contentious issues? And certainly there are plenty of past examples of partisan or ideological hackery in court decisions. Of course there were counter-examples to that, but I don't think anyone could argue that Roe v. Wade, Citizens United, or whatever the Court does on the ACA come even close to the worst or most partisan Court rulings of all time. Are we just romanticizing the decades of post-WW2 progressive court decisions and giving the Court more legitimacy than it ever deserved? OK, I'm ready to contribute to that Court-bashing Super-PAC now.

- JEFF FREY

April 2, 2012 at 4:54pm

JF.. One could argue that SCOTUS became important BECAUSE it became political. The Marbury vs Madison decision that declared that SCOTUS could declare laws unconstitutional written by Marshall was a VERY political decision. Hence, to view SCOTUS as anything other than political is naive in the extreme.

- drofnats1

April 2, 2012 at 5:14pm

You are right Irony. I don't think anyone is arguing that healthcare and health insurance do not involve interstate commerce. The arguments, as I understand them, are: (1) even though healhcare and health insurance involve interstate commerce, there has to be some limit on the power to regulate interstate commerce, and coercing people to enter into private commercial contracts goes beyond that limit; and/or (2) coercing persons who are not in commerce at all with regard to health insurance to enter the market goes beyond the regulation of interstate commerce. My short answers are: (1) the limits on the Commerce Clause power are: (a) that the regulated activity must have some nexus to interstate commerce, and (b) the Bill of Rights, neither of which would exclude the ACA from the scope of the Commerce Clause; and (2) the relevant market is not heath insurance, but healt care, a market in which virtually all of us participates. Dhurtado

- NR143296

April 2, 2012 at 5:32pm

"if the Supreme Court strikes down both the mandate and the whole ACA (or at least the major parts linked to the mandate), it would be political malpractice of the highest order for Obama not to run against the conservative Republican majority on the Court as unelected, unprincipled political hacks who are taking away popular benefits from the American people because their unseen political masters are telling them to do it." Obama is laying the groundwork for such a campaign as we speak. http://www.politico.com/news/stories/0412/74743.html

- AaronW

April 2, 2012 at 6:33pm

Also, there's a piece in Slate which argues the Government already operates in the health care sphere, via non-taxation of employer-related health care benefits. Hmmmm. That makes me think the SCOTUS would be out of line if they shoot down the ACA on constitutional grounds, since, if this is unconstitutional, it was also unconstitutional back during WWII and ever since. http://www.slate.com/blogs/moneybox/2012/04/02/health_care_mandates_we_already_have_them.html

- Sophia

April 2, 2012 at 6:54pm

I loved this paragraph from the Politico piece Aaron linked, from President Calderon of Mexico: The Mexican president urged the United States to follow his country’s example in supporting “full, free health care coverage for all people up to 18 years of age,” among other benefits. “I would hope that one of the greatest countries in the world could follow our example,” he said.

- JEFF FREY

April 2, 2012 at 9:03pm

If, as Cohn says, "In other words, such a poorly reasoned, narrowly won decision should erode the Court's authority" or as Prof. Andrew Koppelman says, "A decision invalidating the mandate would paint Obama into a corner, forcing him to make the Supreme Court a big issue in his reelection campaign." So what? All this would be just talk. We need action. Is a congressional impeachment the only way a Supreme Court Justice can be thrown out for being a political hack, exceeding their authority or ignoring precedence or a verifiable legitimate reason? The President and the Congress can be voted out and its high time the third branch had some limits put on it and the impeachment process seems to be too cumbersome. Does the constitution allow a law to be passed to get rid of bad judges?

- SFGary

April 2, 2012 at 9:12pm

1. If "judicial activism" is really wrong, now would be a really good time for SCOTUS to discover the situation and act accordingly. 2. The cost (in many senses) would be high, but if what would really serve the United States best would be single-payer health care, defeat of the ACA and the mandate, might be the most effective way to get there. In this (OK, crazy) scenario, this SCOTUS might go down in history as a "great Court," perhaps even greater than the Dred Scott Court.

- skahn

April 2, 2012 at 9:41pm

Jeff, I was living in Mexico up to a few weeks ago and I never had problem with my healthcare, across the street where I lived was a publicly funded charity hospital. In 7 years I simply went to the Doctor and everything was taken care of. I only had to go a few times but every Mexican I know of is satisfied with IMSS.

- blackton

April 2, 2012 at 10:23pm

The Court's legitemacy is a relative thing. If by "legitemate" one means that the Court's decisions will be accepted as law by lower courts and by the other branches of govt, then the court's legitemacy is not likely to be under threat. If by "legitemate" one means that presidents and other politicians will refrain from speaking of and to Supreme Court justices like standard-issue pols whose decisions are based not on sound reasoning but parochial interests and personal ideology, then yes, the Court's legitemacy is under threat.

- AaronW

April 2, 2012 at 11:31pm