Thoughts on the Affordable Care Act Litigation

I suppose that, since I haven't posted in a few weeks and since it was the big news over the past several days and since legal/constitutional issues are sort of my specialty, I ought to comment on the recent Supreme Court litigation about the Affordable Care Act and its individual mandate. This could get long-winded; be warned! Okay, here goes:


Point #1: The Commerce Clause is not the issue!
Apparently the main point of debate in oral arguments was whether the Commerce Clause gives Congress a broad enough power to "require" people to buy health insurance, in the sense of creating a tax preference for those who do. This is mistaken; under a proper jurisprudence, this case does not involve any remotely interesting Commerce Clause issues. The only involvement of that Clause is in demonstrating that the "guaranteed issue" regulation, requiring health insurance companies to give even those people with preexisting medical conditions health insurance on the same terms as everybody else, is a valid, constitutional law. From there, it remains only to notice that, once one has issued the "guaranteed issue" regulation, the health insurance industry will collapse due to an adverse selection cost spiral. If one wants to make that regulation, that entirely lawful and constitutionally valid regulation, it is then necessary to also require healthy people to buy insurance, thus making insurance actually function as such and avoiding the cost spiral of doom. Fortunately, the Constitution is wise, and grants Congress the power to make all laws which shall be necessary and proper for carrying into execution any other power of Congress. Case-law has in fact defined "necessary and proper" very broadly; as my sometime professor Steve Calabresi likes to say, those terms would be better translated "useful and convenient." But in this case it really is a matter of necessity: valid regulation X cannot be implemented without creating total disaster unless regulation Y is also implemented.

The fact that there's at least a half-decent argument that the Commerce Clause itself sustains the mandate, without any reference to the Necessary and Proper Clause, is interesting, as it suggests that this is really not a particularly innovative use of the government's power. Likewise, it's pretty clear to me that the law should be upheld under Congress' broad taxing power, since one can frame the "mandate" conceptually as a requirement that everyone pay dues into the health care system which they will all be granted access to in an emergency via a tax penalty if not through insurance premiums. But all of this is basically academic, because the Necessary and Proper argument isn't even the tiniest bit of a stretch: it's a slam-dunk case. And that means that this is not really a Commerce Clause case. I only hope the Justices notice that fact.

Point #2: "Limiting Principles" Are a Bad Way to Argue!
Another common point of debate in oral arguments was the conservative Justices' desire to find a "limiting principle" to the Commerce Clause. The at-this-point cliched question is, "if the government can require us to buy health insurance, why can't it force us to buy broccoli?" First of all, why broccoli? Second of all, as I read some blogger mentioning, probably either Matt Yglesias or Kevin Drum or Jonathan Chait, being forced to do things is a lot less dystopian and authoritarian a condition than being forced not to do things. But more to the point, the quest for limiting powers is a really bad way to frame constitutional arguments. Or, it might be a worthwhile thing to do, if we'd like to find a good limiting principle, but it's a bad way to argue that this particular law is unconstitutional. Everyone making these arguments assumes that the enumerated powers of Congress in Article I, Section 8 must in fact be limited, and limited in some practical sense, i.e. such that something Congress might quite reasonably want to do it is in fact not allowed to do. But the Constitution does not actually say that in so many words; instead, it just enumerates some powers. If it turns out that these powers, properly construed, are in fact plenary, then one can say that this is a shame and one can wish they had written it more carefully, or just that they had made different political decisions about setting the country up. You can even say we ought to make an Amendment creating some meaningful powers-based limitations on Congress (to supplement the massive individual rights-based limitations).

But what you can't do is argue that, because you'd rather this not be the case, it must not be the case. Lots of regrettable stuff is in the Constitution. Maybe plenary Congressional authority is one of them. If it's true that one cannot uphold the individual mandate without signalling a lack of limitation on Congressional authority (which it isn't!), and it's true that the plain text of the Constitution implies in no uncertain terms that the individual mandate is constitutional (which it does!), then it must be true that the Constitution does not make any meaningful denial of power to Congress, except through its individual rights provisions. Them's the breaks. As an aside, I've never really understood why we should get so worked up about the idea of plenary Congressional authority, since nobody complains about state plenary authority and most of the justifications for being happier under more local governments have, in my opinion, collapsed, if they were ever valid. But at the very least we should admit that there isn't any particular reason to insist that the Constitution must not in fact say that Congress has plenary authority, if it turns out that the most reasonably reading of its plain text suggests the opposite.

Point #3: Striking the Mandate Down Wouldn't Create a Limiting Principle Anyway!
Remember how I mentioned above that the mandate is almost certainly a non-controversial exercise of the taxing power? Well, some people might try to quibble about this point, and say that this would be the case if they had called it a tax, but the Administration made a big deal about not calling it a tax so now they just have to take their lumps. Fine, but that means striking this law down doesn't actually set the precedent that one cannot pass this law. It just sets the precedent that, if one wants to pass this law, one had better call it a tax. More to the point, unless the Court is willing to hold that a 100% tax on all forms of income would be unconstitutional (which I think would be reasonable, though only because of the Bill of Rights and in particular the Ninth Amendment), or that tax preferences are unconstitutional, there is no principled limit to Congressional authority. After all, it's a simple matter for Congress to just pass such a confiscatory tax and then grant deductions from it for those people who do the things Congress wants. Again, I think that would be unconstitutional, but it clearly would not be unconstitutional because of a Congressional lack of power; it would be unconstitutional, if at all, because of the individual rights provisions. Akhil Amar, one of my grandfather's students, made a similar point in this interview.


So even if the Court does strike down the Affordable Care Act, it will not have really done anything to strike a blow for the right-wing vision of freedom. All it will have done will have been to signal future Congresses to write their laws a bit more carefully, and to point out to those Congresses that the taxing power lets them get away with things that the Commerce Clause power doesn't.

Oh, and they'll have signalled how completely craven political hacks they are.