Not a Split Decision

A Call for Judicial Minimalism in Considering Health Insurance Reform

By Jacob Fass

“I am quite sure the health care mandate is constitutional. My authorities are not recent. They go back to John Marshall who said that Commerce…. is the power to regulate. To my mind that it is the end of the story to the Constitutional basis for the mandate.”

– Charles Fried, former Solicitor General under Ronald Reagan testifying in support of the individual mandate’s constitutionality to the Senate Judiciary Committee

When the Supreme Court hears oral arguments on the constitutionality of the individual mandate at the core of the Patient Protection and Affordable Care Act, many expect the ruling to be a 5-4 decision that breaks down on ideological lines with Justice Anthony Kennedy casting the deciding vote. This partisan brand of jurisprudence would not be out of the ordinary for our high court, but if the justices examine the mandate from a legal instead of a political lens, if they take an honest look at the precedent of the court and their own legal histories, then the decision will not be close.

Politically, the requirement that everyone purchase health insurance is or pay a small fine is overwhelmingly unpopular; nearly two thirds of the American public opposes it. This could be due in part to a large contingent of conservative commentators who have adopted apoplectic tones about the end of the Republic if the mandate is allowed to stand.  Liberals counter by pointing out that these same commentators were notably silent when Mitt Romney adopted the same mandate in Massachusetts, when Newt Gingrich proposed it as an alternative to Bill Clinton’s health insurance reform plan, and the conservative Heritage Foundation designed it as a private sector solution to the insurance crisis.

But so what? Politics and economics have no bearing on constitutionality. Mitt Romney may have been for the mandate before he was against it, but conservative hypocrisy alone does not vindicate the individual mandate. Conversely, Charles Fried has his doubts about whether or not the Affordable Care Act is good policy but he is nevertheless certain that mandates are constitutional. Good policy is not always legal; legal policy is not always optimal. There can be vast differences between what is sensible and prudent regulation in the 21st Century and what the constitution permits Congress to legislate.

Since the Warren Court era, conservatives and liberals alike have seen the court as an escape hatch to modify legislation they had political objections to. Allowing this practice to persist denigrates our constitution, turning it into a partisan weapon instead of a framework for democratic governance. Policy made by judicial fiat, whatever the merits of the decision, is considered illegitimate by broad swaths of the public and sow political and social division. For an example, look no further than Roe vs. Wade. In that spirit each justice should cast aside ideology and see the upcoming Department of Health and Human Services vs. Florida case through the pragmatic lens of whether or not the mandate is allowed under the commerce clause.

Justice Clarence Thomas, who has opposed most of what the federal government has done since the Progressive Era, is considered a lock to oppose the law. But the other eight justices, including the four other justices appointed by Republican Presidents, have shown a broader perspective on commerce. In Gonzales vs. Reich, allowing the government to prohibit home-grown medicinal marijuana, Justice Scalia (perhaps the court’s most prominent conservative) wrote the majority opinion which heavily cited the 1943 case of Wickard vs. Filburn. Filburn prohibited a wheat farmer from growing extra wheat for personal use and violating government quotas, showing that individual choice can be regulated as interstate commerce. In Reich, Justice Kennedy joined in an even more expansive opinion written by John Stevens.

A vote by any of these Justices to reject the individual mandate, essentially unraveling the entire health law, would cut against decades of legal precedent, some of it set by current members of the court. It would essentially return constitutional law to the 1930’s when the conservative “Four Horsemen,” as they were called, routinely struck down Franklin Roosevelt’s economic policies.  Whether you think that the New Deal was creeping socialism or the savior of the workingman, this kind of unapologetic judicial activism had a corrosive effect on our democracy, and it nearly led to constitutional crises in which Roosevelt attempted to pack the court with compliant justices.

On questions of economic regulation a majority of the court has come to grips with the notion that the Commerce Clause, as John Marshall said in 1819, “is the power to regulate that is to proscribe the rule by which commerce is governed.” No one can argue that the decision to purchase or not purchase health insurance is no part of commerce; not when health expenses account for 17 percent of GDP and nearly two thirds of American bankruptcies are due to medical bills.  Health insurance is intimately tied to commerce; the individual mandate was merely how Congress chose to regulate such commerce.

There is a serious and principled libertarian objection to the individual mandate, but judicial precedent is at odds with such an interpretation of the Constitution. Since the end of the Lochner Era, in which minimum wage laws, child labor rules, and bank regulations were struck down, the nation and the court have gradually accepted a larger role for the government in the economy. Maybe we would be better off if we returned to that age of minimal government. But that is a decision to be made by our elected representatives, not by men in black robes like Antonin Scalia and John Roberts who claim to loathe judicial activism and tyranny.

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