by Jeremy Leaming
Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”
Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.
But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.
Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.
But that did not happen. And some constitutional law scholars say that fact should not be ignored.
Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.
As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”
Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”
Roberts said the Court’s precedent did not support the administration’s argument that “Congress may dictate the conduct of an individual today because of prophesied future activity ….” We have never said, Roberts continued that Congress could “anticipate that activity itself in order to regulate individuals not currently engaged in commerce.” He added that the Court’s commerce clause precedent only “involved preexisting economic activity.”
Liptak and others report that the Right is taking “comfort” in the high court’s take on the commerce clause. And in an interview with Liptak, constitutional law expert and professor at Yale Law School Akhil Reed Amar said “it is important to look at the dark cloud behind the silver lining.”
“Federal power,” Amar continued, “has more restrictions on it. Going forward, there may even be laws on the books that have to be re-examined.”
Another leading constitutional law expert, Geoffrey Stone, professor at the University of Chicago Law School, and an ACS Board member, took note of Ginsburg’s concurring opinion in a piece for The Huffington Post.
Stone said it was important to understand why Ginsburg and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were right about the scope of the commerce clause. “In my view, it [Ginsburg’s opinion] absolutely shreds the opposing view and, in any event, is an excellent primer on the question.”
Ginsburg, in part, wrote, “Rather than evaluating the constitutionality of the minimum coverage provision in the manner established by our precedents, the chief justice relies on a newly minted constitutional doctrine. The commerce power does not, the chief justice announces, permit Congress to ‘come[l] individuals to become active in commerce by purchasing a produce. The chief justice’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation.”
In an interview with the Boston Review, another of the nation’s leading constitutional law experts, Pamela Karlan called the chief justice’s ruling on the commerce clause noteworthy because it only allows for Congress “to regulate commercial activity that is already in existence.”
“And that is, I think, a major decision on the commerce clause,” continued Karlan, a professor at Stanford Law School, and also an ACS Board member. “It has no effect in this particular case, because in this case the chief justice peeled away from that to sustain the act on taxing-power grounds. But it suggests there are five justices who really do want to impose some limits on the commerce power, and, in a separate dissent, Justice Thomas repeated his believe that we should go back to the nineteenth-century version of commerce.”
While taking note of the troubling and novel interpretation of the commerce clause, it is nonetheless worth highlighting, as many are doing, that the Affordable Care Act is one of the more powerful efforts in recent memory to bolster the nation’s social safety net.
Presidents Ronald Reagan, Bill Clinton and George W. Bush all advanced measures that weakened the social safety net, which in turn helped exacerbate economic inequality.
Historian Robert Dallek told The Times, “Historians will compare this to FDR’s Social Security and Lyndon Johnson’s Medicare. This is another step in humanizing the American industrial system.”
The Right will continue to fight the law, even though the minimum coverage provision was one time lauded by some influential conservatives.
As Walter Dellinger has noted before, Maryland Gov. Martin O’Malley recently blasted the Right’s opposition to the minimum coverage provision, saying that the “only health care mandate they can embrace are transvaginal probes for women.”
During a panel discussion on the health care law at the ACS 2011 National Convention Dellinger said he was tired of hearing a “liberty lecture” from right-wing politicians bent on micromanaging women’s health care.
“We hear talks about government intrusions into health care – that this represents an extraordinary step about liberty,” Dellinger said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about a government takeover of medical care, many of whom would legislate the imposition upon women of the unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”