The U.S. Supreme Court begins hearing oral arguments regarding the constitutionality of the Affordable Care Act (ACA) today and no one is precisely sure how they will decide the various cases and issues before them. But, reading the articles and listening to the arguments today (which will be on C-Span), two things jump out at me. First, the issues are extraordinarily complex, and that is a good thing. Second, at issue is not only the ACA but the role of the Supreme Court in our political process.
Complexity is a good thing. Few of us can, in any time, see all the different angles of a given issue. All of us have a temptation to dismiss arguments that do not reinforce our prior ideological leanings. And, in an age of propaganda – and, really, what else can we call it? – complexity is a bump in the road for those who see easy sloganeering as an appropriate response to politics. The justices on the Court will not be asking if the ACA is “socialized medicine.” They will not concern themselves with the benefits the ACA’s advocates insist the law will provide. They will decide if it is constitutional.
An example of the complexity of the issue is the Anti-Injunction Act, a nineteenth century law that barred suits that would interfere with the “assessment or collection of any tax.” Interestingly, both the ACA’s opponents and its defenders argue that the Anti-Injunction Act does not apply here, which seems to me a strange argument to make, especially for the administration. I have always viewed the mandate as a tax, and think if it was viewed as such, the next constitutional hurdle – is the mandate itself a proper exercise of the commerce clause? – would not even be on the table. We know the government has the power to tax and the mandate, actually the penalty for not abiding by the mandate, sure looks like a tax and walks like a tax. You calculate the amount of the penalty when doing your taxes. You pay it to the IRS with your tax bill. But, the administration doesn’t want to say it is a tax for political reasons and the ACA’s opponents do not want to admit it is a tax because then the Anti-Injunction Act would clearly bar any legal challenges at this time.
One of the more interesting sidebars to the case is that, because neither the challengers nor the defenders of the law wanted to cite the Anti-Injunction Act, the Court itself appointed a lawyer to make the argument that the Anti-Injunction Act does apply and, consequently, no lawsuit against the ACA can be brought until 2015, when someone actually pays the “penalty.” I did not know the Court had the power to make such an appointment. N.B. The “penalty” for not getting health insurance starts at $95. per year and the law forbids the penalty from exceeding 2.5% of taxable income, which is still much less than health insurance costs today.
Presuming the Court decides it can hear the case now, the next big issue is whether or not to individual mandate exceeds the authority granted to Congress by the commerce clause. This mandate is tied to the most popular provision of the bill, the prohibition against denying insurance to those with pre-existing conditions. If there were no mandate, a person could skate through life with no insurance and then, when they get a diagnosis that will require expensive treatment, they could sign up for insurance at that time. The insurance companies rightly noted that unless everyone was in the pool, no one would be in the pool, because you could just wait until you were sick and then get the insurance.
I do not buy the argument that the ACA is this massive intrusion of the government into the personal decision-making of its citizenry, nor that the mandate exceeds Congress’ authority. We heard the same complaints when Congress banned child labor and the same complaints when Congress passed a minimum wage law and the same complaints when the Civil Rights Act passed. Those, too, were seen as “unprecedented” and “assaults on liberty.” As I have pointed out a zillion times, it is especially bizarre to see this argument coming from Catholics who have always, always, always held that individual freedom, while a good thing, is not an absolute thing, that freedom is expressed within a political culture in which other moral claims are equally important, such as public order and the common good. Yes, you will need to buy health care insurance under the ACA. But, the fact is that everyone, in the course of their life, needs health care and uses the health care system. I wish we had a single payer system so we could cut out the middle man known as insurance companies. In our current system, a person without insurance passes on the costs of their care to the rest of us. The mandate makes this impossible or at least a whole lot less likely.
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The third part of the constitutional challenge has to do with Medicaid and the coercive power of the federal government to force states to do what the feds want. It is an important issue – and may be the one that runs into the most trouble with this Court – but it is also likely that the outcome of that part of the ruling will be less consequential for future laws, although it might drive a stake through the heart of the ACA.
As I mentioned at the outset, the Court is not only ruling on the ACA. It is ruling on its own role in the political process. Here we have the principal achievement of the Obama Administration’s first term, a long-time goal of one of the nation’s two political parties, passed by majorities of both houses, and five people could overturn it. The Supreme Court plays an out-sized role in our political system that clearly the founders did not foresee. This has often been a good thing for the nation but it has also often been a bad thing for the nation. But, insofar as some originalists think the Court should only interpret the Constitution as it was originally written and intended, you would expect those same originalists to insist that the Court has no such power. Remember, when the Court was first established, it met in the basement of the Capitol for a reason: Not even in the wake of Marbury v. Madison to people imagine the Court would come to play such a prominent and decisive role in our politics.
I suspect that after the arguments, when the justices retire to the conference room to decide the issues before them, they will be very mindful of this fact: A 5-4 ruling against the ACA would be a disaster for the Court itself. They, too, would be dragged into the partisanship that has, so far, crippled the other branches of the government. That is why I expect the Court will ultimately uphold the ACA, with perhaps some nibbling at the edges of certain provisions. (Of course, the issue of mandates for religious institutions is not before the court as a distinct issue at this time.) The Court risked a great deal to its reputation in 2000 with Bush v. Gore and, had it not been for the intervening effects of 9/11, scrutiny of the Court would have been very different and definitely more partisan. I hope the justices know that. They should only overturn the ACA if the constitutional issues are quite clear and they don’t seem quite clear or, better to say, they seem clear to the contending parties but their twin varieties of clarity contradict each other. Unless the Court wants to wade into that partisan mess, they should uphold the ACA.