Why judges should butt out of the fight over health care reform.

The law, lawyers, and the court.
Feb. 11 2011 5:21 PM

First Do No Harm

Why judges should butt out of the fight over health care reform.

(Continued from Page 1)

Is this right? The answer to that question is surprisingly difficult to know. In fact, given the tools at judges' disposal, it's impossible to know with any confidence. Let's consider those tools in turn.

Some judges rely on textualism—i.e., they seek to enforce the plain meaning of constitutional text. Does Congress' power "[t]o regulate Commerce … among the several States" include a power to regulate inactivity that imposes costs on interstate commerce? The text doesn't rule that in, or rule it out. There is no "plain meaning" of the relevant text that bears on the question at hand.

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The same is true of originalism, another tool used by many (especially conservative) judges. An originalist would ask whether the framers of the Constitution intended the Commerce power to authorize congressional regulation of inactivity that affects interstate commerce. That's an easy question to pose, but one searches in vain for an answer. There is no evidence that suggests the framers considered the activity/inactivity distinction, either in the Commerce Clause context or anywhere else.

Nor can the Court rely on its own precedent to provide an answer. There is no precedent upholding a forced-purchase regulation enacted under the Commerce Clause. Nor does any prior decision invalidate such a regulation. Opponents of reform argue that this absence of precedent means that the federal government lacks power. But that's stretching argument by negative implication way too far. Regulation of economic inactivity has simply not been on Congress' agenda. The individual mandate makes sense as a way of preventing adverse selection in health insurance markets. But forced purchases are not a commonplace in economic regulation. The historical absence of such regulation is, therefore, unsurprising. So, too, is the absence of judicial precedent.

If it is impossible to determine definitively the constitutionality of the individual mandate, what should judges do when faced with uncertainty?

In his confirmation hearings, Chief Justice John Roberts famously said that the job of a judge was "to call balls and strikes." That analogy is wrong for several reasons, but it illustrates perfectly the problem judges have here. A baseball umpire mustmake a call on every pitch. But judges have a choice. If the Constitution doesn't give clear directions, they can decide not to decide. They need not strike the law down, nor uphold it. They should just admit, instead, that the Constitution does not direct any result. They should then step aside and let the political process unfold.

In the case of the health care reform law, where the Constitution gives no clear direction, judicial review is inherently and inescapably political. In our system, political decisions are the province of the elected branches—Congress and the president. Judges are charged with enforcing constitutional limits on government power when those limits can be discerned. But when the Constitution doesn't speak, judges have no authority to displace democratically made policy decisions with their own preferences.

That means, in sum, that the debate over health care reform doesn't belong in the courts. It should proceed in Congress, in election campaigns, and around workplace water coolers. Already, we see this happening. The Tea Party movement was born, in large part, in opposition to health care reform, and the movement's political adherents continue to push in Congress for the law's repeal or defunding. They may or may not succeed, but the important point is that the struggle over health care reform must be fought out by politicians and the voters who elect them. The best thing for judges to do in the absence of textual, interpretive, or any other wisdom about the constitutionality of health care reform? Nothing.

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