Dear Dahlia, Jack, Emily, and Judge Posner,
When I saw that the Honorable Richard Posner had taken issue with my positive comments about the Affordable Care Act, I immediately turned to my laptop to respond. Then I paused, recalling the advice of the late great Jim Croce, from "You Don't Mess Around With Jim," the final verse of which I believe goes like this:
You don't tug on Superman's cape
You don't spit into the wind
You don't pull the mask off that old Lone Ranger
And you don't ever debate law and economics with Richard Posner
At least, that is how I remember it. So I will leave unanswered Judge Posner’s concern that people consuming expensive health care under this law will inevitably live longer and thus consume even more expensive health care. Oh, dear.
There has been much talk about the political consequences of the decision. My son Drew Dellinger quipped on his blog that Thursday was “probably the best day for the Obama re-election campaign that hasn't required Seal Team Six.” Others believe that the use of the word “tax” will present a political problem for the president. But at the end of the day, the mandate penalty sustained by the court does not raise the taxes of any American by a single penny—except for those few who can afford health insurance but choose to go without it and place the risk of paying for their medical treatment on others. But really, no one knows.
Before saying farewell to this term, I want to say a few words about whether this was a long-term doctrinal victory for legal conservatives. Did the government win the battle and lose the war? I don’t think so. First, this “battle” was not an ordinary skirmish over control of some provincial outpost, but a contest that determined the fate of one of the four most significant pieces of social legislation enacted in the last century. So if it was just the battle, it was a hell of an important battle.
Second, I’m not yet convinced that the decision holding that the mandate cannot be justified under the Commerce Clause is a significant doctrinal “win” for limitations on the power of Congress. The chief justice’s opinion cites without express disapproval the major precedents sustaining Congress’s Commerce Clause power and strikes down this incidence of its exercise only because it “creates” commerce rather than “regulates” commerce. I don’t find that a persuasive distinction. But it hardly matters since such a narrow ruling is hardly a significant constraint: Even without that holding, it is likely Congress would have gone at least another 200 years before enacting another mandate, given the unpopularity of this one.
Moreover, as my young lawyer friend Babak Siavoshy said to me, even if the ACA had been upheld on Commerce Clause grounds, the ruling would have been cabined to the context of health care, which the government itself argued is sui generis. It was never likely that there would a pro-Commerce Clause decision that went beyond health care.
The limitations on the Spending Clause power are potentially more significant. The court has been warning for years that it would find some limit to Congress’ power to name the tunes played by the pipers it pays in state and local governments with federal funds. It found that line crossed here. But the holding leaves Congress with ample power to enact and enforce conditions on programs it funds with federal appropriations.
More troubling is the almost inscrutable section of the chief justice’s opinion that seems to give a significantly limited reading to Congress’ authority under the Necessary and Proper Clause. The vague suggestion is made that the mandate falls as “improper.” This passage, and others in the opinions of the four conservatives and Chief Justice Roberts, suggest that at least some of these justices are drawn to notions of substantive due process of a kind we haven’t seen since the early part of the 20th century—liberty interests in maintaining the power of wealth and privilege.
If there were a lurking desire to return to a time of judicially imposed economic due process placing limits on social justice legislation, that undercurrent would be there with or without the Affordable Care Act opinions. Thus, on the last day of the term, the government won more than it lost—far, far more.
I would say more about the chief justice’s performance in this case, but it is impossible to improve on Linda Greenhouse’s assessment. She concludes that Roberts “navigated the Supreme Court through a perilous election-year landscape, saving it from the appearance of open partisanship while setting down markers for the game that resumes in October and for the long years ahead.”
I hope we will all be writing for some terms to come. It has certainly been a pleasure this year.