Jan. 24 (Bloomberg) -- When the U.S. House of Representatives voted to repeal the health-care law last week, everyone knew the tally was only symbolic. But within the next year or so will come a vote that counts -- when the Supreme Court has its say.
At issue: can the federal government require individuals to buy health insurance, the mandate at the heart of the overhaul? A constitutional clash is brewing, one that might define political debate for a decade.
We have entered an era when a conservative federal judiciary feels emboldened to strike down social legislation enacted by the elected branches. If the courts deem the health-care law unconstitutional, we can expect progressives to rail against judicial activism, much as conservatives have since Roe v. Wade ruling legalized abortion.
Wait. Aren’t conservatives the ones who demand judicial restraint? They are provided you assume our stances are frozen in the 1960s, when the Supreme Court, led by Earl Warren, expanded rights -- and found a few new ones. Far more often since the nation’s founding, it was liberals who urged judicial modesty, while conservatives used the courts and a narrow vision of the Constitution to advance an intensely ideological legal theory.
A century ago, judges often blocked social legislation, ranging from the income tax to the minimum wage. Among the best known was the 1905 Lochner decision, in which the Supreme Court ruled that a law limiting bakery working hours violated “liberty of contract.” So dubious was this sophistry that the period was known as the Lochner era.
During the Great Depression, the high court overturned many New Deal laws, until Franklin Roosevelt threatened to add as many as six new liberal justices.
Starting in 1937, the Supreme Court agreed that the federal government had ample powers under the Commerce Clause governing interstate economic activity. Labor laws, Social Security, environmental and consumer protections, all got a green light.
Many conservatives see the court’s approach since 1937 as a grand historical mistake, and pine for what Judge Douglas Ginsburg called the “Constitution in exile.” The Constitution, they argue, sharply limits the federal government’s power. Now the Roberts Court, hailed by Fortune magazine as the most pro-business bench in years, will have a chance to test these theories.
Mitt Romney’s Plan
Just two years ago it seemed far-fetched that the courts might threaten the health bill. After all, the individual mandate had long been a routine Republican talking point. When Mitt Romney, then governor of Massachusetts, won passage of an individual mandate in 2006, it was constitutionally noncontroversial. The law was never seriously challenged in federal court, and a state judge upheld it.
Now a similar health plan is the law of the land, though it has yet to take effect. Already it faces an armada of lawsuits. Foes argue the government lacks the power to require individuals to buy insurance, especially from private firms. It would be like forcing every American to buy a General Motors car, they say.
To the law’s backers, this misses the point. The endlessly interconnected health system isn’t a car lot. We all use health care, and uninsured people pass their costs on to the rest of us when they get sick. Congress plainly has the power to set insurance rules, and the mandate is “necessary and proper” (in the Constitution’s words) for that to happen. As Justice Antonin Scalia wrote in an earlier case, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Without the mandate, for example, the ban on discrimination against those with pre-existing conditions is empty. Moreover, they argue, fees levied on those who don’t buy minimal insurance are like a constitutionally permitted tax.
So far, four federal trial judges have upheld the law, while one struck it down. More rulings are due soon. Twenty-six states have joined the suits. Already, armchair litigators are counting votes on the high court. While it is likely the justices would uphold the law, one certainly could imagine a different result.
If so, there is thick irony. Democrats could have sought a more dramatic plan. A Canadian-style single-payer system -- demonized in this country as “socialized medicine” -- would rely on the tax power, while the public option would have given patients the option of buying insurance from a public plan, not just private providers.
Path to Expansion
Democrats instead opted for a complex, sometimes opaque approach. To avoid the stain of a tax increase, they stumbled into a constitutional thicket.
Republicans would gloat. But a dramatic ruling would make it more likely, not less, that the country would ultimately turn to a public plan to expand coverage and curb costs.
Ultimately, America has grown stronger when active citizens, organized pressure groups, and accountable politicians wrestle with large policy challenges. The results often aren’t pretty, and can resemble a Rube Goldberg machine more than an iPad. But far better to have social policy set through a messy, noisy democracy than through a pinched reading of the Constitution.
Let’s heed Justice Oliver Wendell Holmes’ memorable dissent in Lochner. “A constitution is not intended to embody a particular economic theory,” he wrote, “whether of paternalism ... or of laissez faire.” Even when judges are shocked by a law, he said, the court “ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
(Michael Waldman, former head speechwriter for President Bill Clinton, is executive director of the Brennan Center for Justice at New York University School of Law and the author of “My Fellow Americans.” The opinions expressed are his own.)
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