FROM ISSUE NUMBER 8 ~ SUMMER 2011 GO TO TABLE OF CONTENTS
Obamacare and the Limits of Judicial Conservatism
The Patient Protection and Affordable Care Act of 2010, often called "Obamacare," poses one of the gravest challenges to republican self-government since the Civil War. It establishes a vast array of new entitlements, cost controls, and regulations over the health sector that comprises one-sixth of the U.S. economy. And it raises profound constitutional concerns — not only because of its sheer scope, but also because of the authority it claims for the federal government.
When Obamacare was enacted, opponents believed they had only one avenue of recourse: campaign for three years to overturn the law, and then make the 2012 election a referendum on repeal. This strategy has had a promising start. The 2010 midterm elections swept into Congress many Republicans who had campaigned on reversing President Obama's health-care agenda. In January 2011, the new Republican House promptly passed a repeal bill, and Obamacare remains quite unpopular with the public.
Yet no one can say for sure that the legislative repeal strategy will succeed. One could hardly blame Obamacare's opponents for seeking to overturn the law by other, swifter, means. And in the past six months, some of these opponents have come to believe they have found such a means: a suit in federal court challenging the constitutionality of key provisions of the law.
Although three such challenges have foundered, two have succeeded in the federal trial-level courts. In December 2010, Judge Henry Hudson of the Eastern District of Virginia held in Virginia v. Sebelius that a crucial provision of Obamacare — the "individual mandate" to purchase health insurance — is unconstitutional. At the end of January, Judge Roger Vinson of the Northern District of Florida went further, in Florida v. United States Department of Health and Human Services. Because he found the individual mandate unconstitutional, Judge Vinson declared Obamacare unconstitutional in its entirety.
These rulings have emboldened Obamacare's opponents. Last year, when columnist George Will pleaded for "engaged justices" who would review the law's constitutionality, hardly anyone took notice. Even after Judge Hudson issued his ruling in the Virginia case, most foes of Obamacare continued to focus on legislative repeal. It was only after Judge Vinson issued his ruling in the Florida case that those seeking repeal became optimistic about the courts. A few, like Republican congressman Tom Price of Georgia, now speculate giddily that "the courts are going to lap us."
Although Price is more optimistic than most, his comments illustrate how far conventional wisdom has shifted about the litigation strategy. According to that conventional wisdom, once Obamacare reaches the Supreme Court, the four reliable liberals — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg — will find the individual mandate constitutional. The four most reliable conservatives — Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Chief Justice John Roberts — are expected to vote to declare the mandate unconstitutional. If the conventional wisdom is right, therefore, the final ruling will hinge on Justice Anthony Kennedy's vote.
But this conventional wisdom is wrong — and adhering to it could prove highly counterproductive for Obamacare's opponents. It is wrong largely because it assumes that the Roberts Court's "judicial conservatives" are members of a monolithic bloc. But in fact, conservative judges are often pulled in different directions by two competing attachments: to "originalism" and to "judicial restraint." In constitutional cases that touch on questions of federalism, Justice Thomas has generally voted and reasoned as a committed originalist. Justices Scalia and Alito, and Chief Justice Roberts, however, have often appealed to judicial restraint to uphold acts of Congress that may be in tension with an originalist reading of the Constitution. One or more of these three judicial conservatives may well do the same with regard to Obamacare.
Although one of the individual-mandate challenges may succeed, of course, Obamacare's opponents must consider seriously the possibility that these arguments may not even muster four votes in the Supreme Court. They must avoid bragging that the courts will finish off the Patient Protection and Affordable Care Act, lest they sow complacency among members of Congress and the voting public. Above all, they must keep their focus on 2012 and the political and policy ground games. In the end, a legislative repeal — signed by a president who supports it — remains the surest way to undo Obamacare.
THE MANDATE AND THE CONSTITUTION
Most of the lawsuits challenging Obamacare have focused on Section 1501 of the statute, known colloquially as the "individual mandate" or "insurance mandate." This section, which goes into effect in 2014, will require nearly every American citizen either to maintain health-care coverage or to pay an annual penalty submitted with his tax return. In most cases, the penalty will be around $750, subject to inflation adjustments.
The insurance mandate is absolutely necessary to the architecture of Obamacare; without it, all of the reforms the law envisions will unravel — and so will the mechanism for paying for them. Obamacare will restrict the ability of insurance companies to consider health risks when setting insurance premiums. Since coverage will thus cost roughly the same for people who are sick and people who are healthy, healthy Americans will have little reason to purchase insurance until they get sick. But if only the sick purchase coverage, insurance companies will not be able to build financial reserves from healthy customers who are not filing claims in order to finance coverage for the sick customers who are. In the absence of risk rating, the only way to bring healthy people into the risk pool is by compelling them to participate. Indeed, Section 1501 itself calls this compulsion "essential" to the operation of the law.
But does the Constitution really allow the United States government to compel people to buy insurance? The most commonly cited authority for the individual mandate is the commerce clause, located in Article I, Section 8, of the Constitution. This clause gives Congress "power to regulate Commerce...among the several States." And that grant, in turn, authorizes Congress to regulate two general fields of activity. One consists of the instrumentalities of commerce — such as the phone lines, waterways, boats, rails, and train cars by which interstate trade is conducted or shipped. The other consists of the goods and services that are traded interstate.
Neither of these categories covers the individual mandate. The purchase of insurance is not an instrumentality of trade, like a broadband cable. Moreover, health insurance need not be — and most of it is not — purchased across state lines. Because insurance is regulated by the states, most Americans can purchase coverage only in their own states. To be sure, self-insured companies (like some large corporations that directly insure their employees rather than purchasing outside coverage on their behalf) can offer coverage across state lines. By and large, however, there is little or no interstate trade in insurance.
Longstanding Supreme Court commerce-clause doctrine, however, lets Congress regulate a third category of activities — local activities that "substantially affect" interstate commerce. Technically, this power flows not from the commerce clause itself but from a separate constitutional provision, the "necessary and proper" clause, also in Article I, Section 8. That clause gives Congress supplemental "power to make all Laws which shall be Necessary and Proper for carrying into Execution" all of the other powers that the Constitution explicitly grants to the national government — including the regulatory power granted in the commerce clause.
The necessary and proper clause plays an important role in completing Congress's powers under the commerce clause. For example, it makes clear beyond any doubt that Congress may establish penalties or administrative schemes to enforce its regulations, and that Congress may regulate segments of an interstate transaction that stay within the confines of a single state. Yet it has also been cited to authorize many other federal laws and institutions in circumstances in which the connection to interstate commerce is far less clear.
For example, in the first 40 years after the Constitution was ratified, American statesmen debated vigorously whether the necessary and proper clause authorized Congress to establish the Bank of the United States. Hamiltonian Federalists and then Whigs took a nationalist view, arguing that such a bank was necessary and proper for financing government borrowing and encouraging interstate trade. Jeffersonian Republicans and then Jacksonian Democrats argued that the bank was neither sufficiently necessary nor proper in relation to enumerated federal powers. (The Federalists and Whigs generally won the argument until President Jackson finished the bank off for good by vetoing its reauthorization in 1832.)
In contemporary practice and constitutional doctrine, the nationalist approach has prevailed. Indeed, the necessary and proper clause is cited to justify national laws and policies far more expansive than any sought by Hamilton or the Whigs. Drawing on a number of Supreme Court precedents, many judges and constitutional scholars today argue that, if Congress has a "rational basis" (that is, a minimally plausible reason) for concluding that a local activity "substantially affects" interstate trade, Congress may regulate that local activity on the ground that doing so is necessary and proper for carrying into effect its power to regulate interstate commerce.
Congress relied on that understanding when it enacted the individual mandate, as one can see by consulting the congressional findings at the beginning of Section 1501. Those findings argue that, when insurance companies cover health-care expenses, they buy many goods and services that flow in interstate commerce — from electronic medical record-keeping to prescription drugs. If more Americans were compelled to buy insurance, the mandate would increase interstate insurance purchases of such health-care products and services while also making national insurance companies more financially solvent. Taken together, these consequences are said to affect interstate trade substantially, and therefore to enable the mandate to meet the Supreme Court's standards for constitutionality.
SUPREME COURT PRECEDENT
It should be noted that these findings and legal assertions merely assume an expansive reading of the relevant precedents and apply that reading to the American health-care sector. But though this reading has some support in Supreme Court decisions, no Supreme Court decision requires it, and other decisions provide reasons for finding the individual mandate unconstitutional.
The Supreme Court extended the effective reach of the commerce clause furthest in a series of cases decided during the New Deal era. Consider, for instance, the 1942 decision in United States v. Wrightwood Dairy Company. In 1937, Congress had passed the Agricultural Marketing Agreement Act, which aimed to prevent milk from becoming too expensive when it was bought and sold across state lines. The secretary of agriculture tried to enforce a regulation issued under this act's authority against the Wrightwood Dairy Company, an Illinois milk handler. Wrightwood Dairy argued that the act could not be applied to its work because it bought and resold milk produced and traded only within Illinois. In rejecting the company's argument, the Court deferred to Congress's determination that "the marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter." And because "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce," the Court argued, the necessary and proper clause gave it "every power needed to make that regulation effective."
In the same period, the Court developed the "rational basis" and "substantial effects" tests to clarify when federal laws or administrative polices were necessary and proper in relation to interstate commerce. These tests were articulated most clearly in another 1942 case, Wickard v. Filburn. The Agricultural Adjustment Act of 1938 directed the secretary of agriculture to set production quotas in the hope of increasing average crop prices. One farmer, Roscoe Filburn, planted and harvested more wheat than he was allowed under a federal quota. He alleged that he was not going to sell any of the excess wheat: He would only feed it to his own chickens and livestock. But the law's architects contended that if enough farmers evaded the federal quotas as Filburn had, when those individual violations were aggregated, the consequences would undermine federal production and price targets — and substantially affect commerce.
The Court agreed. Since Congress had a rational basis for believing these assertions, the Court deferred to Congress. But what if Congress had used that deference to expand its jurisdiction inappropriately? In Wickard, the Court answered: "[E]ffective restraints on [the federal commerce power's] exercise must proceed from political, rather than judicial, processes." In other words: If you don't like it, complain to Congress, not us.
If one assumes that Congress has the power to control the prices and volumes of insurance and health-care goods and services that are traded interstate, Wrightwood Dairy and Wickard provide some justification for Congress to mandate that citizens buy insurance. The mandate can be portrayed as making effective the interstate controls Congress wants to set.
But there is a crucial difference between these cases and the individual mandate — the distinction between individual activity and inactivity. Even though the Wrightwood Dairy Company did not buy milk in an interstate transaction, it did buy milk. Roscoe Filburn may not have sold the wheat he argued was beyond Congress's federal jurisdiction, but he still planted, grew, and used wheat. Obamacare's individual mandate, on the other hand, applies insurance regulation to people who have done nothing — and want to do nothing — to obtain any insurance at all. Furthermore, if the necessary and proper clause lets Congress compel people to enter into commercial contracts against their will, it is hard to see what limits there are to Congress's power at all.
Other, more recent precedents make clear that an interpretation of the commerce and necessary and proper clauses cannot be correct if it suggests that the Constitution does not limit Congress's power in any meaningful way. In the 1995 case United States v. Lopez, Alfonso Lopez, a 12th-grade student, was arrested at a Texas high school for carrying a concealed .38-caliber handgun and bullets. Federal authorities charged him with violating the Gun-Free School Zones Act of 1990, which made it a federal offense to possess a firearm within 1,000 feet of a school. Lopez argued that the mere possession of a gun had no believable relation to any scheme of interstate commercial regulation. In response, the government argued that if someone shoots another person in or near a school, the victim's injuries generate costs, and insurance companies must draw the funds to pay for them from nationwide insurance pools. The four liberal justices then on the Rehnquist Court offered a similar argument: Gun possession leads to gun violence, gun violence chills classroom learning, poor in-class learning undermines the training of future workers, and poorly trained workers make bad products and provide poor services. Either way, the government and the Court dissenters argued, Congress had a rational basis for concluding that gun violence substantially affects interstate trade.
On behalf of a five-vote majority (including Justices Thomas, Scalia, and Kennedy), Chief Justice William Rehnquist held that these arguments went too far and that the Gun-Free School Zones Act exceeded the scope of Congress's constitutional powers. If the Court accepted the government's argument, Rehnquist warned, it would be "hard pressed to posit any activity by an individual that Congress is without power to regulate." If the Court accepted the dissenting justices' argument, he warned, "we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Rehnquist conceded that "some of our prior cases have taken long steps down that road, giving great deference to congressional action." Even so, in Lopez, the majority drew a line:
[W]e decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated...and that there never will be a distinction between what is truly national and what is truly local....This we are unwilling to do.
With this concern in mind, the Court distinguished its ruling in Lopez from Wickard and other expansive cases on the ground that those earlier cases "involved economic activity in a way that the possession of a gun in a school zone does not."
Lopez strengthens the challenge to the individual mandate. Since the mandate seems a constitutional point of no return, it also threatens the principle that the "Constitution's enumeration of powers...presuppose[s] something not enumerated." To be sure, Lopez does not require a holding against the individual mandate, for it does not announce any explicit distinction between activity and inactivity. But this distinction is quite consistent with what Lopez does say. If a majority of the Roberts Court views the individual mandate as a point of no return, it may easily cite that distinction to protect the broader structural principle that Congress does not have a power to regulate whatever it wants in the name of the general welfare. Indeed, this is the core of the argument on which Judges Hudson and Vinson relied to declare the individual mandate unconstitutional.
TWO JUDICIAL CONSERVATISMS
The conventional wisdom now holds that Chief Justice Roberts and Justices Scalia, Alito, and Thomas will hew to the general logic of the Lopez decision, and will follow Judges Hudson and Vinson in applying that logic to the individual mandate. This is taken by many observers to be the "conservative" approach to the subject. But this understanding makes sense only if we assume that judges simply decide cases politically. Under this theory, judges determine how controlling law and precedent limit their discretion, and then decide cases within those limits to promote their own policy preferences.
But this theory is naïve. Serious judges do not explicitly aim to advance either the partisan interests of the Republican or Democratic parties or their own ideological views about the pros and cons of various policy alternatives. Instead, judges conceive of "judging" in relation to thoughtful accounts of adjudication and interpretation. Conservative judges and scholars are called "conservative" because they generally adhere to a particular account of judges' proper institutional roles. But that account is multifaceted, and different judicial conservatives emphasize different elements of it, which can lead them to several different approaches to judging. These approaches often dovetail with one another, but because they do not dovetail in every case, conservative judges and scholars sometimes splinter over legal issues when their liberal counterparts do not.
To understand contemporary "judicial conservatism" and its ambiguities, it is helpful to describe it as a series of reactions against the "living Constitution" approach that was employed by the Warren and Burger Courts from the early 1950s to the 1980s. The Warren and Burger Courts handed down many landmark decisions declaring new constitutional rights relating to abortion, compulsory school integration, prayer in schools, the procedural rights of criminal defendants, and the death penalty. According to its critics, the living-Constitution approach reflected in these decisions mistakenly downgraded the original meaning of constitutional text, treated precedent too casually, and encouraged federal courts to usurp the legitimate discretion given to political officers to make sensitive policy judgments.
These three criticisms aligned and overlapped as applied to the Warren and Burger Courts' major decisions. Yet these criticisms do not converge in every case. They diverge especially when the issue is not a new right declared by the Court but an act of Congress that strains the Constitution's structure. In such a case, should a conservative judge invoke the judiciary's power to protect the Constitution's original meaning — or worry that such power forces him to second-guess Congress's political choices?
Over the past 25 years, judicial conservatives have sorted themselves by how they have approached these questions. In the ideal form of one approach, "originalism," a judge places highest priority on following the Constitution's original public meaning. Justice Thomas in particular aspires to this approach. In a 2008 lecture, he said: "[T]here are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores." An originalist derives his understanding of adjudication from his interpretation of the Constitution. To decide what kind of judge he should be, he consults Article III of the Constitution and all the relevant historical and interpretive materials that help explain how Article III expects the "judicial power" to be exercised by the judges who are vested with it.
The ideal form of the second approach, "judicial restraint," places the highest priority on limiting the political discretion of judges — even when doing so involves subordinating an originalist interpretation. Justice Scalia gives judicial restraint priority over originalism more often than most Court-watchers realize. He is, of course, an originalist in many respects; his majority opinion in the 2008 case District of Columbia v. Heller (which determined that the District's strict limits on gun ownership violated the Second Amendment) was the most conscientious and thorough attempt by a Supreme Court majority ever to settle a case by applying the original public meaning of a constitutional clause. Nevertheless, in other cases, Scalia has interpreted constitutional text to avoid having to choose between original meaning and narrow judicial discretion — and he has even refused to enforce the original meaning of clauses he recognizes as controlling. For example, in the 1989 case Mistretta v. United States, Scalia conceded that the non-delegation doctrine (which holds that no branch of government may delegate its explicitly assigned constitutional powers to another branch) is "a fundamental element of our constitutional system." Nevertheless, he also announced that he would not try to uphold that doctrine, on the ground that it is "not an element readily enforceable by the courts."
The Court's conservatives are therefore not a unified bloc when it comes to assessing major, controversial legislation by Congress. Although Justice Thomas has not always applied originalism with perfect consistency, his opinions in cases involving federalism make it clear that he will find the individual mandate to be unconstitutional. By contrast, not only Justice Scalia but also Justice Alito and Chief Justice Roberts are occasionally swayed away from originalism by judicial-restraint arguments. Such arguments will complicate efforts to persuade those three justices to vote against the individual mandate. To see why, it is worth considering how Justice Thomas will likely analyze the individual mandate, and then examining several concerns that may give pause to adherents of judicial restraint.
THE ORIGINALIST CRITIQUE
Many conservatives who are not constitutional scholars assume that an originalist analysis of the individual mandate should center on the Tenth Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." But this is not the case. Under a thoroughly originalist interpretation, the Tenth Amendment simply reinforces a conclusion the Constitution already makes clear: The Constitution withholds from Congress the powers it doesn't explicitly give to Congress.
The Constitution limits Congress's powers implicitly, simply by virtue of being a written document. As Chief Justice Rehnquist explained in Lopez, when the Constitution spells out that Congress and other federal actors have certain enumerated powers, the document "presuppose[s] something not enumerated." And the first sentence of the Constitution after the preamble makes this point explicit: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." If a power is not "herein granted," the Constitution doesn't grant it at all. In short, if Congress passes a bill dealing with an issue that the Constitution does not expressly give it "legislative power" to address — such as health insurance — Congress is unconstitutionally arrogating power to itself.
Only three enumerated powers could conceivably be thought to authorize the individual mandate (none in fact does so in accordance with the original meaning of Article I, Section 8). The first, the commerce clause, cannot supply such authority. To an originalist, there are three fundamental problems with an appeal to the commerce clause in this case: First, as noted above, laws covering in-state insurance purchases do not regulate "Commerce...among the several States." Second, a "mandate" is not "commerce." And third, imposing a mandate does not "regulate." At the nation's founding, as Justice Thomas observed in a concurring opinion in Lopez, "‘commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." To speak of "buying" and "selling" presumes both a willing buyer and a willing seller. If an insurance purchase is mandated by the government, it therefore does not constitute buying, selling, or commerce. And constitutionally, the government would not be "regulating" commerce between voluntary parties if it compelled one party to buy a service from another under protest.
The second possible authority is the taxing clause — found in Article I, Section 8, Clause 1 — which vests in Congress the "Power to lay and collect Taxes...to pay the Debts and provide for the common Defence and general Welfare of the United States." In the Virginia case, Obama-administration lawyers reframed the individual mandate as a $750 tax on every person who does not purchase the minimum level of coverage specified in the legislation. Judge Hudson, however, explained convincingly why Section 1501 did not create a tax. That section calls the $750 levy a "penalty" — not a tax. This usage is not an accident: Other provisions of Obamacare impose what are expressly labeled "taxes" — and the "penalty" language in Section 1501 replaced draft language that had earlier called the $750 levy a "tax." In Section 1501, Congress clearly intended to apply not its power to tax but its power to regulate commerce.
The last possible authority is the necessary and proper clause. As Wrightwood Dairy's and Wickard's holdings illustrate, this clause can easily be used to obliterate the Constitution's delineation of parallel federal and state planes of jurisdiction. To avoid that possibility, a serious originalist would construe "necessary" and "proper" only to complement and complete, not undermine, the federal-state structure set forth in more specific constitutional provisions like the commerce clause. For instance, Justice Thomas dissented from the Court's decision in the 2005 case Gonzales v. Raich, in which the Court ruled that, under the commerce and necessary and proper clauses, the federal government may criminalize the production and use of marijuana grown at home even if state law permits it. In his dissent, Thomas read the term "proper" to authorize a law only if it carries an enumerated power into effect with a means that is "not prohibited by" the rest of the Constitution. That law, he said, must also be generally consistent with "the letter and spirit of the [C]onstitution."
According to that test, the individual mandate is not constitutionally "proper." To illustrate why, consider again the distinction between interstate and in-state insurance sales. The commerce clause allows Congress to regulate interstate insurance sales, and to pre-empt state laws regulating insurance sales among the several states. At the same time, however, by specifically assigning to Congress the power to regulate interstate insurance sales, that clause reserves to the states jurisdiction to regulate insurance sales within their own borders. Because the individual mandate claims to regulate in-state insurance sales, it asserts local regulatory powers inconsistent with the federal-state balance delineated by the commerce clause. Anyone who cites the necessary and proper clause to support the mandate is citing indeterminate language in the "letter" of a constitutional backstop provision to undermine both "the letter and the spirit" of a clear primary provision.
In short, under a pure originalist analysis, the individual mandate exceeds Congress's powers. That conclusion raises one more question: Does the mandate's unconstitutionality mean that the entire law is unconstitutional? In the Virginia case, Judge Hudson concluded "no." In the Florida case, however, Judge Vinson concluded "yes." Here, Judge Vinson correctly applied a principle called "severability." When a court determines that one or a few provisions of a law are unconstitutional, it should declare void only the unconstitutional provisions unless they seem inextricably intertwined with the rest of the law. Judge Vinson was right not to sever the individual mandate from the rest of Obamacare. The individual mandate does certainly seem — to borrow Vinson's metaphor — the most important spring in a "finely crafted watch" with more than 450 pieces. Politically, insurance companies probably would not have acquiesced in Obamacare's new risk-rating restrictions and coverage expansions if they had not been assured that they would be able to finance the expansions with new cross-subsidies from the individual mandate. Administratively, if the mandate is declared invalid, it is extremely difficult to imagine how Obamacare's new coverage expansions will be financed. On that basis, it is quite likely that Justice Thomas, the Roberts Court's most thoroughgoing originalist, will follow Judge Vinson and find Obamacare unconstitutional in its entirety.
JUDICIAL RESTRAINT AND THE INDIVIDUAL MANDATE
But it is possible that Justice Alito, Justice Scalia, or Chief Justice Roberts may recoil from one or more features of this argument.
To begin, recall that judicial restraint makes many judicial conservatives want to follow precedent. Justice Thomas's approach unsettles a lot of precedent, and some of his conservative colleagues have proved unwilling to do the same. Thomas's view of the commerce clause was first described by Chief Justice John Marshall back in the 1824 opinion Gibbons v. Ogden. But when a litigant cited Gibbons to defend states' rights in a 2005 oral argument, Chief Justice Roberts elicited laughter from the gallery by objecting: "Well, the relation between the states and the federal government has changed a little since Gibbons versus Ogden." Evidently, Roberts intends to respect New Deal precedents on the commerce clause to a greater degree than Thomas.
Of course, as Judges Hudson and Vinson have shown, there is a way to declare the individual mandate unconstitutional without violating any controlling precedent. Nevertheless, it is at least possible that Scalia, Roberts, or Alito may read the New Deal precedents more broadly than they were read by the majority in Lopez. Many conservative Court-watchers seem to have forgotten that Justice Scalia voted not to find unconstitutional the anti-marijuana federal prosecution challenged in Raich. In his concurring opinion, Scalia declared that he was following Court interpretations of the necessary and proper clause in Wrightwood Dairy and in other cases going back as far as the 1830s.
Recall also that judicial restraint makes many judicial conservatives extremely reluctant to substitute their judgments for Congress's on questions of policy. The Roberts Court's conservatives splintered on this issue in the Court's most recent federalism decision, the 2010 case United States v. Comstock. The case presented a challenge to a federal law that allowed authorities to institutionalize federal inmates after their prison terms ended, if those former prisoners were likely to be sexual predators of children. That challenge argued that the Constitution did not grant Congress any enumerated power to limit any longer the liberty of former inmates who had already paid their debts to society. According to Thomas — in a dissent joined by Scalia — no constitutionally enumerated power permits Congress to deal with sexual predators, and Congress could not use the necessary and proper clause to bootstrap one. Yet Chief Justice Roberts joined a Court opinion, and Alito wrote a separate concurring opinion, deferring to Congress's stated policy.
To be sure, Roberts and Alito may not defer to Congress on the individual mandate. Obamacare asserts on Congress's behalf a power to restrain the liberty of an extremely broad group of Americans, and these Americans have not revealed any tendency to endanger their neighbors as the ex-inmates had in Comstock. Yet Obamacare's supporters will argue that the health-care law addresses a national crisis — lack of access to health care — much greater than the danger of sexual predation. Justice Thomas had an answer for this argument in Comstock: "[T]he Constitution does not vest in Congress the authority to protect society from every bad [problem] that might befall it." But by deferring as they did in Comstock, Roberts and Alito compromised their ability to rely on Thomas's answer when they consider a challenge to Obamacare.
Finally, judicial restraint motivates many judicial conservatives to avoid indeterminate interpretations of constitutional clauses. As an example, consider the 2004 case Tennessee v. Lane, regarding Section 5 of the 14th Amendment. That section confers on Congress the power to enforce the rest of the 14th Amendment "by appropriate legislation," and in Lane the Court considered whether the Americans with Disabilities Act was an example of such appropriate legislation. Supreme Court precedent construes the term "appropriate" to imply a "congruence and proportionality" test — much like the "letter and spirit" test Thomas applies to determine what is "proper" under Article I, Section 8. In Lane, a five-vote majority (consisting of the Court's liberals and Justice Sandra Day O'Connor) argued that, under this standard, the Americans with Disabilities Act was a constitutionally "appropriate" method of enforcing the 14th Amendment's rights guarantees. In a dissenting opinion, Justice Scalia complained that the congruence-and-proportionality test created a "standing invitation to judicial arbitrariness and policy-driven decisionmaking." In his concurring opinion in Gonzalez v. Raich, when Scalia followed Wrightwood Dairy's necessary-and-proper holding, he surely did so in large part to avoid the "judicial arbitrariness" he criticized in Lane. It is thus at least possible that Scalia will decide that it would be too arbitrary for the Court to insist that the terms "necessary" and "proper" imply the distinction between activity and inactivity central to the challenges raised against the individual mandate.
To be sure, there are also reasons to think that Scalia might see the individual mandate differently. In the past, the Court has managed to distinguish tolerably well between "state action" and "state inaction." For example, in the 1989 case DeShaney v. Winnebago County Department of Social Services, a mother sued a Wisconsin county alleging that its social-service workers neglected warnings that the father of her child would abuse him. The Court held that the 14th Amendment did not give her a right to hold the county accountable for mere nonfeasance — that is, a failure to do more to protect the son from an aggressor. In other lines of necessary-and-proper-clause doctrine, Congress has been barred from "commandeering" — that is, mandating — state officers to implement federal policies as if they were administrative officers of the national government. Perhaps Scalia will recognize in American citizens the same freedom from federal mandates that existing doctrine gives to states.
All the same, in previous necessary-and-proper-clause cases, Scalia has refused to defer to Congress only when Congress has tried to commandeer state officers, to make states liable for damage judgments in federal court, or (as in Lopez and Comstock) to regulate individual conduct with no believable relation to economic regulation. Those exceptions are fairly narrow and clear-cut. A distinction between individual activity and inactivity may not be nearly so clear or easy to keep within manageable limits. It is therefore possible that Scalia — or Alito, or Roberts — may refuse to construe "proper" to set forth a judicially enforceable distinction in Obamacare litigation. And if Scalia, Alito, and Roberts are not sure bets to void Obamacare, then the likelihood that the law will be declared unconstitutional must be lower than 50-50.
THE LEAST DANGEROUS BRANCH
Opponents of Obamacare may object: Perhaps members of Congress and the president are not learned enough in the law and are too partisan to follow the Constitution, but judges can and should be expected to do better. This objection is understandable. Legally, Article VI of the Constitution establishes "this Constitution" — not any judge's personal opinions about the advantages of judicial passivity — as "the supreme Law of the Land." Nevertheless, practically, this objection fails to consider two significant limitations on adjudication.
First, this objection is not sympathetic enough to how difficult it is for a judge to shift the direction of case law as fundamental as the Court's commerce-clause jurisprudence. When the New Deal Court decided Wrightwood Dairy, Wickard, and similar cases, legislators and Supreme Court justices were extremely enthusiastic about centralized national administration. The Patient Protection and Affordable Care Act extends that same enthusiasm to health care. When Justice Kennedy has seen fit to agree with the Rehnquist and Roberts Courts' conservatives, the resulting Court majorities have found ways to limit the New Deal cases and gradually undermine the case law's nationalistic policy orientation. Lopez confirms as much. Nevertheless, this case-by-case method is unsatisfying. Lopez limited Wrightwood Dairy and Wickard by appealing to a factual distinction between economic and non-economic activities — when the real difference between the decisions went to first principles. Yet if justices always decided cases solely in relation to first principles, the Court's case law would be even more unstable and politicized than it is now.
By contrast, state and federal legislators are much freer to take new laws enacted under the authority of the commerce clause in a different direction. With 70 years' hindsight, legislators may consider whether centralized New Deal programs have helped or harmed American economic life — and then choose not to follow old doctrines because of changed circumstances. Different Congresses may establish different constructions of the same constitutional clause at different times, or in different fields of regulation. In judicial decision-making, such inconsistencies are embarrassing; in politics, they are easier to understand and excuse. And because legislators do not simply answer to Supreme Court precedent (as Judges Vinson and Hudson do), lawmakers remain much freer than most judges believe themselves to be to reconsider old precedents from first principles. President Jackson pointed this out when he vetoed the reauthorization of the Bank of the United States in 1832. Even though the Supreme Court had found the bank constitutionally necessary and proper in the 1819 decision McCulloch v. Maryland, Jackson declared he would give the Court's opinion "only such influence as the force of [the Court's] reasoning may deserve" and decided to construe "necessary" and "proper" more strictly.
Second, the rule of law we expect from courts is only as robust as the determination of the elected branches to enforce it — which is to say, only as robust as the citizenry's insistence that elected officials respect the rule of law. Federalist No. 78 stands as one of the earliest and most articulate defenses of constitutional judicial review. Yet it also recognizes that, of the branches of government, the judiciary "will always be the least dangerous to the political rights of the Constitution." After all,
The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This powerlessness matters very much in relation to Obamacare. Wrightwood Dairy and Wickard are leading precedents on the commerce clause in large part because, in 1936, President Franklin Roosevelt won a mandate — 61% of the popular vote — by running against a Supreme Court that had declared invalid the National Industrial Recovery Act, and at least three other acts of the first wave of the New Deal, on the theory that they exceeded the scope of the commerce clause. Many elected politicians and interest groups have too much at stake to acquiesce if the Supreme Court were to resuscitate pre-1937 constitutional federalism.
To be sure, as Judge Hudson's and Judge Vinson's opinions showed, judges need not assault the New Deal frontally to find the individual mandate unconstitutional. And politically, because Obamacare is almost as unpopular now as pre-1937 constitutional federalism was in 1936, a ruling voiding the individual mandate would run with the grain of popular opinion, not against it.
All the same, conservatives on the Supreme Court may worry about protecting the Court's political capital long after the public has forgotten about Obamacare. When Justice Scalia respects precedent, defers to Congress, or refrains from construing indeterminate text, he does so at least in part to preserve the Court's standing in relation to Congress and the president. In Lane, he found it "ill advised" for the Court "to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government." In the 1995 case Plaut v. Spendthrift Farm, he indicated that he prefers "high walls and clear distinctions" in structural constitutional law because "low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict." Depending on how he reads the relevant precedents and the term "proper," Scalia (or Alito, or Roberts) may decide that the theory followed by Judges Hudson and Vinson yields walls too low and distinctions too vague. Even if a ruling against the mandate did not provoke a crisis or a political backlash from Obamacare supporters in the short term, these conservatives might worry about its effects on interdepartmental relations over the long term.
Opponents of Obamacare may dislike this possibility, but it would be unreasonable for them to blame any judge who shows judicial restraint in relation to Obamacare. After all, even restrained conservatives have a far greater interest in conserving the Constitution than do the legislators and the president who enacted Obamacare. The most constructive thing opponents of Obamacare can do is to persuade the American people to elect more public officials who want to conserve the Constitution, too.
This is not to say that it was counterproductive to bring Virginia, Florida, and other legal challenges to the individual mandate. Although these cases are not quite toss-ups, Obamacare's opponents do have a very real chance of prevailing.
At least as important, the lawsuits have been immeasurably helpful in advancing the political efforts of those seeking to repeal the law. Obamacare does not yet seem a settled matter to the American people. Judges Hudson and Vinson have helped to keep perceptions unsettled, for they have taught the country that the individual mandate expands the national government's power further than any relevant Supreme Court precedent allows. And they have humbled some of Obamacare's most ardent supporters. Back in 2009, when a reporter asked then-House speaker Nancy Pelosi whether Obamacare was authorized by the Constitution, her dismissive response was: "Are you serious?" But one year after the law's enactment, former congressman Anthony Weiner — a New York Democrat and one of the law's biggest champions — conceded: "I think there's a pretty good chance that the Supreme Court will strike down the mandate."
Given these realities — both the encouraging and the sobering — where should champions of repeal go from here? Four key principles can serve as useful guides.
First, there should be no irrational exuberance about the Virginia and Florida decisions. While constitutional challenges are pending in the federal courts, it would be a mistake for anyone to boast that the Supreme Court will "lap" Congress and void Obamacare. Rather, opponents of the law — especially those in Congress — should acknowledge carefully that no one knows for sure how the Court will rule. They should then proceed to instruct and remind the public that the individual mandate exceeds any federal authority granted by the Court to date.
Second, Obamacare opponents should not despair if the Supreme Court votes not to declare the individual mandate unconstitutional. As Claremont McKenna College political scientist Charles Kesler has noted, the American people and (especially) state and federal legislators "have acquired the bad habit of reflexively deferring to the Court on questions of constitutionality." We would be much better off if we were in the habit of respecting Court opinions as President Jackson suggested, by giving them "only such influence as the force of their reasoning may deserve."
Therefore, third, opponents of Obamacare must anticipate what to say if the Supreme Court votes not to declare the individual mandate unconstitutional. In that situation, Obamacare's supporters will almost certainly try to take advantage of the bad habits Kesler has described. But if opposing legislators and candidates understand judicial restraint as explained here, it will be easy for them to respond. Many of the most relevant Court cases explicitly encourage legislators to take ownership of the constitutional issues in question. Wickard v. Filburn, as noted above, states that "effective restraints on [the commerce clause's] exercise must proceed from political rather than judicial processes." If the Supreme Court follows those decisions, lawmakers who oppose Obamacare should cite them as well and explain that the Court has placed all the more responsibility on the elected branches to ensure that the law is consistent with the Constitution. They should welcome a debate in which they and Obamacare's supporters make their best constitutional cases to the American people — and then let the people decide at the next election.
Finally, if legislators and candidates will need to argue against Obamacare's constitutionality later, they might as well start now. And here, they should consult the opinions of Justice Thomas. In the Republican response to President Obama's 2011 State of the Union address, Congressman Paul Ryan said: "Limited government also means effective government. When government takes on too many tasks, it usually doesn't do any of them very well." As interpreted by Justice Thomas, the commerce clause embodies the same vision of a lean and effective federal government. In Thomas's opinion, the Constitution forces Congress to focus on setting general and uniform rules for interstate trade. By withholding from Congress the power to regulate in-state transactions — such as, say, insurance purchases or the provision of medical care — the Constitution protects Congress from being overwhelmed by the responsibilities of regulating all insurance and health care provided nationwide. It also frees Congress from the kinds of political pressures that led to the side deals employed to round up enough votes for Obamacare — like the "Louisiana Purchase" and the "Cornhusker Kickback" — or that have led to the selective waivers the federal government has been granting in administering Obamacare since it took effect.
In trying to persuade the country to elect a coalition determined to repeal Obamacare, the law's opponents should ask: How can Obamacare claim to "regulate" interstate "commerce" when the act mandates that citizens purchase a service they do not want to buy? How can Obamacare claim to be "proper" under the necessary and proper clause when it bloats and constipates the national government? And how is it "proper" to divert regulation of health care and insurance from the state and local governments that are more accountable and responsive to the American people?
When Obamacare's opponents become adept at asking questions like these, they will make their case for repealing the law even more compelling than it is now. If the American people agree in November 2012, they will have taken the greatest step in our lifetimes to re-awaken and strengthen our constitutional culture. And they will not have needed a Supreme Court opinion to do it.
Eric R. Claeys is a professor at the George Mason University School of Law.