Since it became law less than a year ago, almost two dozen lawsuits have been filed challenging the constitutionality of President Obama's health care reform plan. Federal district court judges have reached decisions in four of those cases. The law has twice been upheld, and twice struck down. Both judges upholding the law were appointed to the bench by Bill Clinton. Both judges striking down the law are Republican appointees. In all likelihood, the lawsuits still pending will continue to be decided along partisan lines. And when the issue finally reaches the Supreme Court, the justices are likely to vote in the same manner. If they do, many believe the law will be struck down, 5-4.
Whether one favors or opposes the law, it's troubling that the fate of a scheme designed to improve a badly broken industry that consumes almost 18 percent of U.S. GDP depends wholly on the political preferences of a few federal judges. No one voted to allow judges to make these decisions. Judges possess no special expertise in assessing health care policy. And because they enjoy high-quality and relatively low-cost government-provided health care, they also have no direct experience of the health care crisis.
Worse yet, the undeniably political tenor of judicial review in the context of health care reform is being replicated across a huge range of pressing policy questions, including the constitutionality of gun control, abortion, affirmative action, and laws against homosexual sodomy. In each instance, the Constitution offers no clear directive. Judges are left free to rule according to their political instincts.
Blame the Founding Fathers. And blame us for our absurd fetishization of them and the increasingly time-worn document they created. Because we're determined to run a post-industrial democracy by reference to a vague, terse, pre-industrial Constitution, we get judicial opinions that read like political arguments. We can't cure this by resorting to "apolitical" judicial methodologies, like originalism, that are touted as constraining judicial discretion. They don't constrain it; they obscure it. Nor can we cure the problem by appointing only "apolitical" judges who "apply the law." We might as well try to appoint a unicorn, because neither creature exists.
Failing a wholesale renovation of our Constitution, the only cure is less judicial review. Judges must be made to understand that there is a difference between a plausible constitutional argument and a compelling one. And unless the constitutional argument against health care reform is compelling, judges should step away and let the political debate unfold. In cases in which the Constitution does not speak clearly, judges have nothing to add—except another political opinion nobody wants.
This is especially true if you favor liberal policy outcomes. Aside from the brief Warren Court interregnum, judicial review has been a largely conservative force. Liberals' love affair with judicial review is long overdue for reconsideration. One possible silver lining—should the Roberts Court strike down health care reform next year—may be that liberals finally discover the nerve to walk out.
A quick review of the diverging rulings on Obamacare's constitutionality is illustrative:
The judicial attack on health care reform focuses on the "individual mandate," a provision that will, starting in 2014, require all Americans to have adequate health insurance or pay a stiff fine. The purpose of the mandate is simple. The law prohibits denial of coverage for pre-existing conditions. But eliminating that problem creates a new one: Unless people are obliged to purchase insurance, the young and healthy will choose not to insure (if they get sick, they can opt in at any time). Without a mandate, the insurance risk pool will consist mostly of older, sicker people. Health insurance will become more expensive for everyone.
For this reason, the individual mandate is a vital piece of the health care reform scheme. It's also—or so it appears at the moment—the law's greatest constitutional vulnerability. Health care reform opponents maintain that the mandate is beyond the federal government's constitutional power. The most obvious source of federal authority is the Constitution's Commerce Clause, which grants Congress the power "[t]o regulate Commerce … among the several States … ."
The text of the Commerce Clause is bare, the historical understanding of the framers' intent is hardly helpful, and as a result courts have veered sharply over time in interpreting the scope of the federal Commerce power. Back in the mid-1930s, the Supreme Court enforced a narrow reading and struck down several parts of Franklin Roosevelt's New Deal. But just a few years later—after Roosevelt threatened to pack the Court with new (and presumably more sympathetic) justices—the Court reversed course. In a series of decisions upholding New Deal statutes, the Court held that federal regulation, even of purely noncommercial and intrastate activity, would be upheld if the regulated activity had some effect on interstate commerce.
The wide scope of federal Commerce power established by the post-New Deal consensus has lasted, mostly undisturbed, until now. Which brings us back to the district court decisions examining health care reform. Clearly, the private decision to purchase health insurance has a huge effect on interstate commerce—many insurance providers operate in more than one state, their risk pools are made up of people everywhere, and the price of insurance depends on individuals' decisions about whether to purchase coverage. So shouldn't the insurance mandate be comfortably within Congress' power?
The GOP-appointed judges think not. They reason that although the Commerce Clause gives Congress constitutional authority to regulate activity affecting interstate commerce, what the insurance mandate regulates is inactivity—i.e., an individual's decision not to purchase insurance. These judges argue that Congress has no power to force an individual to purchase something, so the insurance mandate must fail.
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.
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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