In the immediate aftermath of the historic three-day
hearings there was much buzz about the fate of the Affordable Care Act. There
was a palpable sense, in the blogosphere and in the physical world of the DC
area, that the ACA was in deep trouble. I kept going back to the idea that I
could not see Justice Kennedy, in spite of some of his negative questions about
the constitutionality of ACA, ruling with the four conservative justices
against this act of Congress. Now comes a
lengthy article in
The New York Review of Books by the law
professor Ronald Dworkin that includes this thoughtful analysis of why Kennedy
will indeed rule the ACA to be a constitutional exercise of congressional power.
Do the Supreme Court’s
past decisions nevertheless force it to strike the act down out of respect for
precedent? No, on the contrary the precedents emphasize that the Constitution’s
allocation between national and state power rests only on the subsidiarity
principle I described earlier—giving Congress power to deal with national
issues—and so they confirm that the conservatives’ distinction is irrelevant.
Two great chief justices
set out that principle in these often-quoted remarks. In 1824, John Marshall,
in Gibbons v. Ogden, said:
The genius and character of the whole government seem to be,
that its action is to be applied to all the external concerns of the nation,
and to those internal concerns which affect the States generally; but not to
those which are completely within a particular State, which do not affect other
States, and with which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government.
In 1937, in the Jones
& Laughlin Steel case, Charles Evans Hughes said:
Although activities may be intrastate in character when
separately considered, if they have such a close and substantial relation to
interstate commerce that their control is essential or appropriate to protect
that commerce from burdens and obstructions, Congress cannot be denied the
power to exercise that control.
The precedent most
directly in point is the Court’s 1942 decision in Wickard v. Filburn.
The Agricultural Adjustment Act of 1938, which was designed to protect the
market price of American wheat by limiting production, was applied to limit the
wheat a farmer could grow on his own land for his own consumption. Justice
Robert Jackson, for a unanimous Court, said that restricting what farmers could
grow for their own use was a valid exercise of congressional power because it
meant they would have to buy the wheat they needed in the market and so helped
to sustain the price of that commodity. Jackson treated forcing large farmers
to buy some of the wheat they need as an important part of the act: he drew no
distinction between forcing them not to sell wheat and forcing them to buy it:
if either had a significant impact on the national economy, it was a proper
subject for congressional regulation.
By the end of the
twentieth century it seemed that because local, national, and indeed
international economies had become so densely interwoven, there was almost no
limit to the regulatory power the subsidiarity principle gave Congress. But in
1995 and 2000, in two 5–4 decisions, conservative justices called a halt to the
extension of national authority over local matters. In United States v. Lopez
they denied Congress the power to forbid handguns in or near schools and in United
States v. Morrison they denied it the power to provide civil
remedies to battered women. Liberals deplored these decisions because they
denied needed powers to the national government. But they could be defended, at
least plausibly if not persuasively, as an application of the subsidiarity
principle.
Kennedy wrote an
instructive concurring opinion in Lopez; in view of his potential swing
vote in this case, we must pay particular attention to that opinion. He
endorsed a dynamic, shifting application of Congress’s power to regulate commerce.
He spoke of “the Court’s definitive commitment to the practical conception of
the commerce power” and he quoted this from an opinion of Justice Sandra Day
O’Connor in an earlier decision:
[The federal-state balance] has been sufficiently flexible over
the past two centuries to allow for enormous changes in the nature of
government. The Federal Government undertakes activities today that would have
been unimaginable to the Framers in two senses: first, because the Framers
would not have conceived that any government would conduct such activities; and
second, because the Framers would not have believed that the Federal
Government, rather than the States, would assume such responsibilities. Yet the
powers conferred upon the Federal Government by the Constitution were phrased
in language broad enough to allow for the expansion of the Federal Government’s
role.2
Kennedy said that
nevertheless the subsidiarity principle, even so broadly understood, would not
permit Congress to forbid guns in school. “The statute now before us,” he said,
does not have, in either design or purpose, any “evident commercial nexus.” Furthermore,
it “forecloses the States from experimenting and exercising their own judgment
in an area to which States lay claim by right of history and expertise, and it
does so by regulating an activity beyond the realm of commerce in the ordinary
and usual sense of that term.” None of that applies to either health care or
health insurance. These are both very much caught up in a national nexus of
commerce and, particularly through such programs as Medicare and Medicaid,
Congress has a much greater experience in those areas than any state does.
In these passages Kennedy
emphasized two cardinal ideas. The first is that when Congress regulates
commerce in a new way, the novelty of its mode of regulation is not in itself
an objection to its power to regulate. Changing economic structures require
changes in regulatory strategy. He cited the Wickard decision I just
mentioned, in which the Court upheld Congress’s then novel limit on growing
wheat not for commerce but for home consumption. It would therefore be surprising
if he thought that the novelty of the act’s mandate requiring people to buy
health insurance is in itself a ground for constitutional objection.
Second, he insisted on a
“practical” test of the proper distinction between federal and state power. It
does make sense to place what he called, in the oral argument of the present
case, a “heavy burden of justification” on those who defend a new mode of
regulation. But that burden must be understood to require them to show
convincingly, not that the mode is not new, but that it is necessary to meet a
truly national demand. Congress met that heavy burden by establishing, in its
findings, that a national program of health care for everyone is desperately
needed and that a mandate is essential to the program it designed.
4.
Even the act’s opponents
concede that since the Constitution explicitly gives Congress the power to “lay
and collect taxes,” it could establish a single-payer national health care
system, like the British National Health Service, by imposing a special health
care tax and providing medical care itself. Congress relied on the taxing power
to make the Social Security program constitutional, for instance. Solicitor
General Verrilli noticed the irony: the conservative justices questioned the
constitutionality of the Affordable Care Act, which relies on private insurance
and traditional private medical practice, while admitting that a program that
gave the national government much more control over doctors and patients would
survive any constitutional challenge. Of course, as the conservatives know, a
single-payer system would be politically impossible in the United States now,
or in the foreseeable future.
Verrilli made a further
argument, however. He said that the act was already, even as adopted, a form of
taxation and therefore should be held constitutional in virtue of the explicit
taxing power even if not under the interstate commerce clause. The oral
argument over this issue seemed largely about a question of language. The act
describes what eligible people must pay if they fail to insure themselves as a
“penalty,” which suggests a criminal regulation rather than a tax, and
President Obama once denied that the act counted as a tax increase. On the
other hand the prescribed penalty is to be calculated and paid as part of
income tax, and it would be silly to think that those who are excused from the
penalty, which include the very poor, are nevertheless criminals. It makes more
sense to regard them as falling below a tax threshold.
In the oral argument
Justice Kennedy set out the important substantive question behind the
semantics:
I’m not sure which way it cuts, if the Congress has alternate
means. Let’s assume that it could use the tax power to raise revenue and to
just have a national health service, single payer. How does that factor into
our analysis? In one sense, it can be argued that this is what the government
is doing; it ought to be honest about the power that it’s using and use the
correct power. On the other hand, it means that since…Congress can do it
anyway, we give a certain amount of latitude. I’m not sure which way the
argument goes.
Kennedy’s question comes
to this: Is the proper balance between congressional and state power better
secured by limiting what Congress can do or what it can say it is doing? Can
the fate of an ambitious piece of legislation really turn on how many times the
word “tax” appears in its text or on the accident of how many senators actually
say, as several of them did in this case, that they were exercising the tax
power rather than the commerce power? True, the American public is allergic to
tax increases so that any such labeling might make some difference to a
statute’s reception. But the act hardly lacked opponents who decried it as a
tax increase and, in any case, it seems reasonable to ask people to judge a
statute by asking what it actually does to or for them, not how politicians for
and against label it. Our politics would be much improved if more citizens did
exactly that.
The act could easily be recast, with no change
of substance, to make it look more like what it really is: a more conservative
example of using the tax power to achieve social justice, just as the Social
Security Act does. It would then obviously be a valid exercise of the tax
power. It seems worse than perverse to punish the nation for what its
legislators happened not to say. So the act the conservative justices threaten
to strike down is doubly constitutional: it is a legitimate exercise of
Congress’s power both to regulate the nation’s commerce and to require its
citizens to contribute to the cost of vital national programs.
