11:40 am Dec. 20, 20111
As of yesterday, it's official: The Supreme Court will hear arguments on President Obama's landmark health care reform starting March 26, right around two years after the law was first enacted.
The challenge to the law's requirement that most Americans carry insurance was brought by 26 Republican-controlled states, and leading members of the party have made it abundantly clear they expect the challenge to succeed once it reaches the conservative-leaning court.
Last Saturday night, for example, both Mitt Romney and Newt Gingrich told a debate audience in Iowa that the the mandate to purchase health insurance or be subject a penalty on one’s taxes—the cornerstone of Obama's law, without which its designers believe the whole package more or less comes unglued—was an unconstitutional overreach of federal power.
“It means the Congress, which could compel you to purchase this item, could compel you to purchase any item,” said Gingrich, who has selectively supported the idea of a mandate since the early 1990s. “And so the question of freedom would be dismissed. And any majority could then decide to make you do virtually anything.”
“The idea of a federal government, federal mandate, as you see with 'Obama Care,' flies in the face of the Constitution, and violates the Tenth Amendment,” said Romney, who helped pass a mandate in Massachusetts. “I think the Supreme Court will strike it down. If they don’t, I will.”
That kind of optimism isn't arbitrary; it's based on the prevailing dynamic of the court over the last decade, during which time the court has regularly split along ideological lines, with Justice Anthony Kennedy providing the decisive, unpredictable swing vote.
But according to some prominent legal scholars, the court—or more particularly, one or more of the court's four conservative-leaning justices—may be preparing to do something unusual by joining their liberal colleagues in a ruling on how far federal power extends under the Commerce Clause.
“I think for many of us who are interested in this issue, this seems to be plainly within Congress's power, and not just plainly within Congress's power, but in an area in which the court has consistently given Congress a great amount of deference, and discretion to do what it wants to do,” said Barry Friedman, a constitutional law professor at New York University.
That analysis that leads the scholars to believe that, in addition to Kennedy, one or more of the reliably conservative justices might join the four liberal ones to side with the Obama administration on health care. And that list begins, somewhat surprisingly in conventional political terms, with the court’s most outspoken originalist: Justice Antonin Scalia.
In 2005, Scalia joined the more liberal members of the court in Gonzales v. Raich, ruling that a California couple who grew marijuana for their personal consumption could still be considered to have engaged in interstate commerce, for the purposes of subjecting them to federal regulation under the Commerce Clause.
“The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself ‘substantially affect’ interstate commerce,” Scalia wrote in a concurring opinion.
The Raich decision drew heavily on the 1942 precedent established by Wickard v. Filburn, when the court ruled that a Kansas farmer growing wheat in excess of federal constraints on wheat production had “a substantial economic effect on interstate commerce,” even though it was for his own family.
For the ensuing five decades, Wickard was the rule, as the court acknowledged the country’s new interconnectedness by successively expanding the notion of interstate commerce.
And then, suddenly, it stopped. In 1995, five justices, including Scalia, decided in United States v. Lopez that Congress had gone too far, and that a bill criminalizing the possession of guns near schools didn’t have enough to do with interstate commerce. It followed that with a 2000 decision, in U.S. v. Morrison, invalidating parts of the federal Violence Against Women Act.
Since then, the court has been muddling its way through a gray area of what exactly constitutes commerce in the modern world.
Scalia’s expansive interpretation of the Commerce Clause in Raich, which angered some of his conservative supporters, is now seen as the most telling data-point by some scholars in predicting how he might rule on the health care bill.
“Justice Scalia is going to decide what Justice Scalia is going to do,” said Neil Siegel, a professor at Duke Law School and a former clerk to Justice Ruth Bader Ginsburg. “But I think if Justice Scalia is faithful with his opinion in Raich, which embraces Wickard, then, he ought to vote to uphold the minimum coverage provision on Commerce Clause grounds.”
The question, of course, is whether the current political context will affect how the justices view that precedent. Some observers think it already has.
“I initially thought it was going to be pretty lopsided, because I think it's a pretty clear call under existing doctrine,” said Gillian Metzger, a professor at Columbia Law and former clerk for Justice Ginsburg. “The more it becomes politicized, as it has, the more the ideological framing has become so dominant, I think it may be a closer call.”
By almost all counts there are five sure things. The four reliably left-leaning justices—Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor—will take a broad view of the Commerce Clause and vote to uphold the law. And the court’s conservative stalwart, Justice Clarence Thomas, who has never wavered from an eighteenth-century interpretation of interstate commerce, will almost certainly vote to strike it down.
That leaves Kennedy and Scalia—who were both in the majority for the Raich decision, but were also part of the majorities that had earlier restricted the Commerce Clause—and Roberts and Alito, who, as relatively new members of the court, are generally considered wild cards when it comes to federalism.
For any of the three undecideds not named Kennedy to side with the liberal bloc in upholding the law would undercut a primary electoral argument for Republicans across the country: that Obama and a Democratic Congress grossly overstepped their constitutional authority in imposing an individual mandate.
But intervening to overturn the law has its own political costs. It remains unclear whether the popular provisions of the bill—like forcing insurers to accept customers with pre-existing conditions—can exist without the mandate. As a practical matter, removing the mandate would lower the number of people covered by insurance and increase premiums, according to most analyses. As a constitutional question, the court has scheduled 90 minutes of oral argument on whether the individual components of the bill are legally severable, as part of a marathon five-and-a-half hours of argument scheduled for March.
Overturning the mandate could cast doubt on Congress's authority to forge creative legislation to address issues in the health care industry.
"In my view, this would be by far the most assertive, momentous invalidation of an important federal law, of an important program of the president, since the constitutional crisis over the New Deal in 1937,” said Siegel. “I mean, you think about it, every other Supreme Court decision from the Rehnquist Court, the Roberts Court, nothing comes close, in terms of the importance, the significance, the political divisiveness, the political debate that extends back decades. Nothing comes close, in terms of striking this down.”
To the extent that the politics matter to the justices on the court, or concerns about public perception, they would be certainly be sticking their necks out more by striking down the law than by leaving it in place, the legal scholars said.
“Even if they reason backwards, they have to hate this health care law to then stick their neck out and strike it down, because the court is going to take a real hit in terms of its institutional integrity,” said Friedman, who wrote about the popular will's effect on the court in his book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.
Friedman said the political turmoil that would ensue from striking down the law would make Citizens United and Bush v. Gore “look like a picnic.”
He predicted that the court’s integrity would of particular concern in this case to the chief justice, for whom the decision will be one of several that inevitably define his tenure.
“It would be bad to have a 5-4 decision here in either direction,” Friedman said. “Bad for the court and bad for the country. And I think that there are justices on the court, in particular the chief justice, who understand that and would be reluctant to have the case come down quite along that divide.”
A 5-4 decision, one that rests on Kennedy's reasoning, would be a lightning rod for political criticism of the court, and could leave the constitutional questions unsettled too. One possible way for the court to avoid such an outcome would be simply not to address the most divisive aspects of the health care law.
"If there's going to be a majority opinion sustaining this, and there really is some real institutional credibility to be gained from having it not be a closely ideological vote, given the current doctrine that does really support it, I think one can say, ‘Look, as a matter of logic, this is constitutional under current doctrine,’ and not get into some of the issues that have more of an ideological component,” said Metzger.
Metzger said the court could follow the example set by some of the appellate judges who have ruled to uphold the law, including three notable conservative judges: Jeff Sutton of the Sixth Circuit, and Brett Kavanaugh and Laurence Silberman of the D.C. Circuit.
"Those are three really, really smart judges,” said Metzger, who predicted that Sutton’s and Silberman’s opinions that the law is clearly constitutional under the Commerce Clause could carry particular weight with the court.
"It's not just the authors, it's also what the authors have to say,” said Siegel, referring to what he said were “very good opinions on the merits.”
“[Silberman] wasn't just reasoning begrudgingly saying, ‘Look, we've got to follow the court's precedent, the court's precedence dictates this outcome,’" Siegel said. "He seemed to be speaking in his own voice as well, particularly at the end, when he said Congress has to be free to forge national solutions to national problems. So it’s not just who wrote them, but what they say.”
Not that a justice like Scalia would need ideological cover either way to do what he pleases. Siegel, who spent some time with Scalia this summer at a Duke program at the University of Geneva, doesn’t expect him to be coaxed or cowed by the lower court rulings.
"This is not his first rodeo,” said Siegel. “He is very set in his views. I don't think he's going to need the cover of conservative judges in order to uphold this. I think he's going to call this the way he sees this.”
Precedent notwithstanding, the court is essentially starting from scratch when it comes to the idea of a mandate, and whether the federal government can actively compel people to buy insurance.
“I don't think there's any serious argument that commerce isn't being implicated, so it all comes down to an active-passive distinction that people want to draw,” said Friedman.
“And at some level, everybody's up for grabs for that, because it's completely new. It's all made up. Most of us don't think it gets very far.”