Obamacare v. Conservatism: The Good, The Bad, and the Ugly of the coming Supreme Court Hearings


[ Photo: 2012 SotU address by Pete Souza/Justice Antonin Scalia by The Higgs Boson ]

Next week, the Supreme Court will hear three consecutive days of arguments on the constitutionality of the Affordable Care Act (ACA) a.k.a. “Obamacare”. That might not sound like much time to consider such a momentous issue, but it is nearly unprecedented in the court’s history. Most cases include only an hour of oral argument. That such unusual accommodations are being made suggests that this case is of great importance not just to the American People, but to the Supreme Court itself.

Audio recordings will be posted at the end of each day’s arguments, so we’ll be able to listen to the whole thing—in almost-real-time. What follows is a crash-course on the context and history of the arguments you’re likely to hear (if, like me, you’re nerdy enough to listen).

First, a quick disclaimer: I’m a first-year law student, and by no means an expert. An actual lawyer would likely be able to explain this subject with more nuance than I. But the writings of actual lawyers are generally incomprehensible to most people, so I’ve made a layperson’s guide to the Epic Battle for Obamacare.

Okay, with that out of the way, let’s get down to it.

A Few General Notes on the Supreme Court

If the Court behaves as it is supposed to—following precedent and being mindful of past judicial doctrine—the Court will overwhelmingly uphold the ACA’s individual mandate, the core of the legal challenge surrounding the law. Although it might be easy to forget with the Court’s behavior of late, the Court’s job is not to willy-nilly decide however it feels about a given case and then make that decision “The Law”. Instead, the Court is supposed to look at all the law that has been decided before it and use that already-decided law, i.e. precedent, as a means of determining how that precedent should be applied to the facts of the present case. This is supposed to be a conservative (with a little C) process that values stability in the law and keeping with tradition, over radical and far-reaching changes.

photo: basb

When the Court is dealing with issues about which most people do not care, its decisions usually hinge on idiosyncratic legal arguments, and ideology tends to be disfavored. However, in highly politicized cases (as this one surely is), the justices are much more likely to divide along ideological lines. A partisan breakdown in this instance would likely lead to five conservative justices striking down the ACA’s individual mandate over the dissent of four liberal justices. This was the breakdown of Citizen’s United, which was itself a fairly controversial decision, not the least because of that partisan breakdown.

The good news is, precedent is not on the side of the bad guys.

A (Somewhat) Brief History of the Commerce Clause

Photo: Katie Harbath

The individual mandate of the ACA, which proposes a tax penalty for anyone who fails to purchase private insurance coverage, is being challenged by various Republican state Attorneys General as an unconstitutional expansion of Congressional power. This claim is based on the “Commerce Clause”, enumerated in Article I, Section 8 of the Constitution. It gives Congress the power to “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Believe it or not, it’s this little clause that gives Congress the vast majority of its power to legislate day-to-day. Because commerce, in some sense, is affected by nearly everything anyone does anywhere at anytime, Congress can make laws about nearly anything it wants.

The Commerce Clause gives Congress the ability to legislate about anything that has a “substantial effect” on interstate commerce. This means that, theoretically, if a public or private action occurring within, say, New York state, had no commercial effect on any other state or citizen in any other state, technically, Congress would be unable to legislate about it. That would be solely within the purview of the state of New York and its local legislature. At the time of the founding, when the Commerce Clause was written, and as it was interpreted shortly thereafter by Chief Justice Marshall in Gibbons v. Ogden, it was possible, even likely, that actions within a state would have no economic consequence on any other state. But in modern society, that possibility becomes extremely unlikely.

Congress’ Commerce power, while, broad, isn’t without limits, however. In fact, in the late 19th century and the first third of the 20th century, a staunchly conservative Supreme Court (not unlike the make-up of the current one) struck down federal law after federal law, insisting that the Commerce Clause did not provide Congress with the power Congress was claiming as a means of regulating the economy. Though the Court would sometimes let through laws they liked, such as laws banning lottery tickets, or laws that went after unions, for the most part, the Court was intent on minimizing the power of Congress and thus the Federal Government, so as to help strengthen the power of the states.

The Great Depression and FDR changed all of this. During FDR’s first term, the Court continued its trend of striking down many of the laws Congress passed that seemed, to the Court, to strengthen Congress’ regulatory power too much. This meant many of the laws FDR pushed through Congress in order to try to ameliorate the worst affects of the Great Depression were struck down. FDR, never one to shrink from a fight, lashed out at the Court, threatening to “pack the court” by pushing legislation through Congress that would allow him to appoint 6 new justices, each of whom would be hand-picked by him to uphold his New Deal legislation.

Justice Roberts may not have been a man of courage, but he was certainly flexible

Lo and behold, once it became clear FDR meant business and had the votes to push his plan (or a watered down version of it anyway) through Congress, the Court quickly changed gears, and suddenly started upholding legislation very similar to that it struck down just years before. In 1937, in what became known as the “switch in time that saved nine”, Justice Owen Roberts (not to be confused with the current Chief Justice), who had tended to vote with the conservatives on the court, then started voting with the liberals. Soon thereafter, some of the conservatives started retiring, and by the time FDR died, he had appointed 5 new justices to the Supreme Court. Beginning in 1937, the Supreme Court didn’t strike down another piece of federal legislation based on Commerce Clause grounds until 1995, when the new conservative majority regained a strangle hold on the Court.

The case of Wickard v. Filburn, argued before President Roosevelt’s more liberally reconstituted Supreme Court in 1942, is often held up as the classic example of just how broad the Commerce Clause’s scope ended up becoming. Filburn was a farmer in Ohio who grew wheat for personal consumption only. In no way did the wheat Filburn grew ever leave his farm. Nonetheless, the Agricultural Adjustment Act of 1938 regulated the amount of wheat farmers were allowed to grow. Filburn violated this act by growing more wheat than he was allotted and when he was ordered to destroy some of his crop, he sued for an injunction to stop that destruction from happening. Filburn argued that the Agricultural Adjustment Act violated the Commerce Clause in his instance, because his farming didn’t effect interstate commerce in any way. After all, he consumed all the wheat he grew himself.

But despite Filburn’s protestations, the Supreme Court upheld the Agricultural Adjustment Act as a valid act of Congress under the Commerce Clause. The Court first acknowledged that Filburn’s actions alone did not have a substantial effect on interstate commerce. The Court noted, however, that Filburn’s wheat production DID have a small effect on interstate commerce. Because Filburn grew wheat for himself, he did not buy the wheat he consumed from someone else. This caused the demand for wheat to go down ever so slightly, which accordingly lowered the price of wheat just as minutely. Critically, the Court then allowed that it was proper to take actions such as Filburn’s and aggregate them nationally for Commerce Clause purposes. In other words, if everyone grew more wheat than they were allotted, simply for self-consumption, the price of wheat would plummet nationwide. This would have a dramatic impact on interstate commerce. This was sufficient for the Court to uphold the law as it applied to Filburn as a valid act of Congress under the Commerce Clause.

The important point to note here is that the Court’s aggregation principle makes the bounds of the Commerce Clause essentially infinite. Aggregation allows literally everything to have a significant impact on interstate commerce. I challenge you to think of a single thing you could possibly do in your day that,  if aggregated across the country, wouldn’t have a significant impact on interstate commerce. It just doesn’t exist. And that’s why for nearly 60 years, the Supreme Court never struck down Congressional legislation based on the Commerce Clause.

But all good things must come to an end, and the cops busted up this particular party in 1995, when the Supreme Court decided United States v. Lopez. In a 5-4 decision with an ideologically split court and the conservative justices in the majority, the Court’s conservative majority struck down a law banning the possession of firearms in a school zone as a violation of Congress’ Commerce power. The Court argued that in order for Congress to regulate purely intrastate activity (as they claimed this legislation did), it had to have a substantial effect on interstate commerce. This is exactly the same thing as what the Court said in Wickard, noted above. But the difference here was that the Court found the aggregation used in Wickard to be acceptable only if the activity being regulated by Congress was “economic”. That term wasn’t very well defined, but the Court, at least, noted that the law at issue in Lopez wasn’t economic.

Later cases affirmed that this would be the Court’s general approach to dealing with modern Commerce Clause cases, and as such, this is the approach we should use when we analyze the means by which the Court will think about the ACA case.

Okay, now we finally get to the good news. If you’ve made it all the way through the winding path of the Commerce Clause, you can probably see that the ACA should fall easily within even this Court’s more restrictive approach to the Commerce Clause. First and foremost, it would be difficult for anyone to argue that the ACA doesn’t regulate interstate commerce. It’s whole point of being is to regulate commerce among the various states. It creates a nationwide health care pool. It dictates rates based on nationwide standards, etc etc. And even if you forgot to take your pills today and you somehow argued that the ACA didn’t directly regulate interstate commerce, you’d be even more hard-pressed to believably assert it doesn’t have a substantial effect on interstate commerce, or that the legislation isn’t “economic” in nature.

So, the good news is that if the Court were to follow its own recent precedent, it would probably be an 8-1 decision upholding the law, with only Justice Thomas in the minority (whose Commerce Clause opinions are pretty crazy and not worth spending time going into).

Thus, the interesting thing about this case becomes how  the Court could find ways of getting around its own recent precedent so it can still find a way of striking the law down. That brings us to The Bad.

How the Court Will Play with its Prey for a While Before it Goes In For the Kill

photo: deltaMike

A crucial point in this whole debacle is that, believe it or not, the Supreme Court is extremely sensitive to the way it’s perceived publicly. This is at least partially the case because, to a large degree, the Court’s power exists only to the extent that it’s allowed to have that power. Technically, that power comes from the Constitution. But there are no mechanisms to actually protect the Court’s power, other than that flimsy piece of paper. If the President decided he didn’t want to listen to the Supreme Court, he wouldn’t have to. And the Court wouldn’t be able to do anything about it. Justice Scalia may have wit, charm, and boyish good looks, but Barack has the guns, and a bunch of people who will fire them when he tells them to. This, of course, goes for Congress, too, (though Congress doesn’t really have an army at its disposal in quite the same way).

The point being, the Supreme Court only has power because it’s allowed to, and ultimately, that power comes from you and me. We hold the Court’s power to be legitimate and an important part of our Constitutional Democracy. We value its existence enough that, were President Obama to completely disregard a ruling by the Supreme Court, (at least one about which the public cared), there would likely be public outrage and the blowback against Obama would be strong enough that Obama would either have to relent and obey the Court, or he could well face impeachment.

So keep all that in mind as you think about how the Court is going to handle this case. Note that it’s going to be making what is without question its biggest and most controversial decision since Bush v. Gore (and before that, it was probably Brown v. Board of Education), and will be doing it smack in the middle of a presidential election on which its decision will likely play an inordinately large role.

It’s for this reason that many say the Court is unlikely to strike down the law in a 5-4 decision along partisan lines. It would be too polarizing. So if the conservatives are going to strike it down, they’ll want a vote from either Kagan, Sotomayor, Breyer, or Ginsburg. And the fact of the matter is that that’s just not going to happen. Ever.

So what’s a radically conservative Court to do? They punt.

If the Court really wants to strike the law down, it can avoid the question now and return to it in 2014 and strike it down then—where at that time they might better be able to get away with a 5-4 conservative vote.

How can they do that? I was hoping you wouldn’t ask me that, because I don’t completely get the ins and outs. But basically there’s an old law that says an individual can’t sue over a tax against them that hasn’t yet gone into effect. Some argue that the ACA constitutes a tax, because the way the individual mandate is implemented is that refusal to purchase insurance shows up as a penalty in your federal tax returns. This is not generally held to be a particularly convincing argument, but it’s not wholly implausible either. And if the Supreme Court wanted to push off this tough decision until 2014, they would rule the ACA a tax and then wait for it to be implemented.

So that’s the first way they strike the law down. Of course, this requires none of the 5 conservative justices on the Court presently to retire or die in the meantime (assuming President Obama is re-elected). It seems quite unlikely that the Court’s conservative composition will change at all between now and then, but it’s certainly not outside the realm of possibility.

But even if the justices decide to tackle the case head-on this year, the Court still has another option for striking down the ACA. That brings us to The Ugly.

Let Me Tell You Where You Can Stick Your Precedent

As I laid out earlier, there is very little wiggle room for the conservatives on the Court to find a legitimate rationale within the Commerce Clause to strike down the ACA. But fear ye not, Ms. Palin, we might stave off those death panels yet.

Many of those who argue the law should be struck down now point to the scope of the law as a rationale for its invalidation. The idea here is that never before has Congress regulated inaction in the way the ACA does. Basically all of the Court’s Commerce Clause jurisprudence has revolved around Congressional legislation regulating action. Congress tends to say “don’t do that”, rather than “do this”. Note how the two cases mentioned above both dealt with restrictive legislation—don’t grow too much wheat, don’t bring a gun to school.

Defenders of the ACA are quick to point to provisions such as those that mandate all drivers have a minimum amount of car insurance before they get behind the wheel. No one believe these provisions to be an unconstitutional expansion of Congress’ Commerce Clause powers. But those against the ACA point to the key difference, which is that Americans have the choice to be drivers or not. If you don’t want to pay for car insurance, you can choose not to drive. Many proud New Yorkers, myself included, happily choose to not be burdened by such a constraint, and to instead rely on public transportation. But the ACA regulates the inaction of ALL Americans, no matter what. Every American is commanded by Congress to purchase health insurance in the private market. Never before has the scope of congressional legislation extended so far.

When a Supreme Court justice decides she doesn’t like the outcome of a case that’s dictated following precedent, that justice will look for ways to “distinguish” the present case from previous cases, so that she can, in some sense, ignore the precedent she doesn’t like, that leads to the outcome she doesn’t like, and instead find a legal rationale that will lead to the result she wants. Sometimes, the precedent is so strong and so pervasive, she has no choice but to submit to its will. It is essentially undistinguishable. But sometimes she lucks out, and she finds a gap into which she can drive her crowbsar—some way of claiming that, “the present case is NOTHING like those other (lousy) cases, so I’m not going to pay any attention to them!”

The scope of the ACA and the way it regulates inaction provides those justices who want to strike down the law, but need a reason to do so, a way to wiggle out of Wickard and Lopez and the Court’s other Commerce Clause jurisprudence.

Gazing Into the Magic Eight Ball

In the end, I don’t believe the Supreme Court will strike down the ACA. My prediction is that it will be either a 6-3 or a 7-2 decision upholding the law. We’ll get all the liberal justices (of course) and we’ll get a least Kennedy and Roberts, and I think it’s possible we’ll get Alito too.

These guys REALLY like their job. Photo: Talk Radio News Service

Why? Because I think, ultimately, what Roberts cares about even more than making sure poor people can’t go to the doctor, or that health insurance companies profits remain high, or even that he gets the opportunity to kick Obama in the shins—what Roberts cares most about is keeping his power. His power only exists because the Supreme Court has power. And it only has power because we allow it to.

The only way the ACA is going to be struck down is with a 5-4 opinion with all the conservative, Republican-appointed justices voting to strike down the law, and all the liberal, Democratic-appointed justices voting in the minority to uphold the law. The politics of a decision like that, right as Obama and (probably) Romney are heading to their respective conventions, is terrible. It will be a public relations nightmare for the Court.

Many of us haven’t been alive long enough to have experienced the public’s reaction to Brown v. Board of Education. And very few of us were alive to hear the public outcry get louder and louder as the country suffered through the Great Depression, while the Court struck down law after law implemented to try to get the nation’s economy working again.  And frankly, most of the Supreme Court justices weren’t around for that either. But they’ve read about it plenty. They understand just how easy it is to get there, and just how much of a threat it can be to their very existence.

So in the end, I think enough of the conservatives will fall back on the overwhelming precedent to vote with the liberals and uphold the law. That way, even though Republicans across the country will be just as angry over the decision as Democrats would be had the decision gone the other way, the pundits will be able to say, “Hey, at least it wasn’t a partisan decision. Clearly an ideologically diverse coalition believed this law was Constitutional.” And in the end, that will be sufficient to keep to outcry from getting too loud. And more importantly, it will be sufficient for the Court to maintain its legitimacy, so they can live to fight another day. Maybe next year, they can decide some cases that make poor people suffer some more. After all, Roberts still has most of his hair. The night is young.


  1. Lenny says:

    Wow, excellent analysis Chris. I hope you’re right that the Court adheres to its recent precedent (particularly the medical marijuana Commerce Clause case Raich v. Gonzalez), and upholds the ACA by a solid margin. I hadn’t thought about the possibility that they could punt — very interesting. You’re absolutely right that the Court’s only real power over the other branches of government is based on the respect that those branches, and the public, afford it. Partisan, ideologically based decisions jeopardize that respect for the institution.

  2. Chris says:

    Thanks Lenny. That means a lot coming from a real lawyer! I hope I didn’t butcher the law too badly…

  3. Katya G says:

    Thanks, Chris. Great read.

  4. Carolyn says:

    Wow, Chris, I hope you’re right. No matter which way it goes, I’ll have a better understanding, thanks to you.

    Having been in a Southern elementary school with Brown v. Board of Education came down, I can tell you that there was much weeping and gnashing of teeth on the part of segregationists, but the schools didn’t integrate in my hometown for about a decade. With ACA, it simply won’t go into effect, and people will continue to struggle outside the healthcare system.

    I notice you didn’t mention Justice Thomas, whose wife has lobbied against ACA and really should recuse himself.

  5. Alan says:

    Thanks, Chris, for clarifying a very complex situation. Given how partisan our political and governmental process has become, I hope you’re right about the ideologues on the Court not getting carried away.

  6. Bob Lamm says:

    Terrific piece, Chris. If you are able to listen to the oral arguments, it surely would be great to get your thoughts on how the lawyers present the case and how the justices seem to be reacting.

    I tend to agree with your thinking. I highly doubt that Roberts will allow something so important to be overturned by a 5-4 majority. And he probably won’t want it to be upheld by a 5-4 majority either. So I’m guessing that no matter how Roberts actually feels about Obama or the health plan, he will join the majority upholding the plan and will make sure that at least one of the GOP judges comes along with him. 6-3 with Kennedy, 7-2 with Alito as well; I’m with you in suspecting that these are the likely options.

    FYI I was a political science major in the late 1960s when for the first time social scientists were challenging the traditional law school view that Supreme Court justices (and other judges) simply looked at a case, looked at the law, looked at relevant questions, and made impartial decisions. Even the early studies of voting behavior on the Supreme Court showed that this view was a lovely myth at best. You can look at certain cases and in many controversial cases correctly predict that Hugo Black and William O. Douglas would be on one side and Felix Frankfurter on the other–just as today in many such cases it’s not hard to predict that Ruth Bader Ginsburg will be on one side with Antonin Scalia and Clarence Thomas on the other.

    Ironically, I had a Facebook skirmish about a week ago with someone whose politics are liberal, not conservative, but who still seems to cherish the old law school myths. (And he’s not a lawyer!) He was going on glowingly about Sandra Day O’Connor as the model of the impartial, fair judge who was nonideological and just looked at everything in an impartial way. He wrote this even as he was blasting the Court’s infamous decision in Bush v. Gore, where lifelong Republican O’Connor cast a crucial vote.

    In my responses, I described O’Connor as a “centrist” who sometimes voted with the liberals and sometimes with the conservatives. My Facebook friend stated that this was saying something “against” O’Connor (direct quote). My response was that calling O’Connor a centrist was quite factual and that any study of Supreme Court voting during her tenure would easily document that.

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