Finally, after endless partisan polemics, the Affordable Care Act of 2010 will be argued this week before the US Supreme Court. As most of my friends know, I am philosophically no fan of judicial review. I consider it to be a true blight on our system this peculiar modern American proclivity to permit the most unrepresentative, elitist, and intrinsically anti-democratic element in our government such wide-ranging freedom to overturn laws that have been democratically passed by popularly elected legislators. That said, that’s the way we do things and the system we have to work within!
While I may not be as cynical about our Judiciary as the columnist who recently wrote in The Washington Post that that the outcome of such fundamental decisions depends essentially on which side of the bed Justice Kennedy got up on that day, it is in fact almost impossible to predict (at least prior to hearing how the Justices behaved during oral arguments) how this case will actually go. In part, that is because of the ambiguity of the legal issues themselves.
The first is whether the 1867 Federal Anti-Injunction Act applies. That law stipulates that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” That’s a very sensible law - and not just because it restricts the judiciary’s jurisdiction. Invoking it (as the Court of Appeals for the Fourth Circuit did last year), would allow the Court to kick the can down the road, so to speak, and avoid this election year hot potato. But, of course, this Court has a history of intruding itself into the political process. And, in any case, both sides really would prefer a substantive decision. Hence, neither side is advocating this outcome. Even so, the Court could rule that, since the provisions in question have not yet come into force, no one has been penalized and hence there is as yet no basis for an action. In terms of the current political circus we call an election, I think that might not be such a bad short-term outcome.
Assuming that the Court does not go that route, however, then the remaining oral arguments on Tuesday on the constitution’s commerce clause and the “individual mandate” and on Wednesday on the “individual mandate” and “severability” and on Congress’s authority to expand Medicaid will really matter. At minimum, the legal arguments involved will raise important issues about whether or not we have a legal system which is capable of addressing contemporary problems.
The Justices, of course, cannot be unaware that the “individual mandate” was conceived and promoted as a conservative idea to preserve private insurance as the preferred method for paying for health care in the US. If the “individual mandate” is declared unconstitutional, then (regardless of what is decided on the technical question of “severability”), the Affordable Care Act (particularly its requirement that insurance companies cover people with “pre-existing conditions”) will become in effect unaffordable. As insurance rates rise, sooner or later there will be a popular outcry to fix the problem. (After all, almost everything in the Act except the “individual mandate” is popular with voters, but all those things will become hopelessly expensive without the “individual mandate”). The only option left then will be a totally public system – something like Medicare for everyone, which President Nixon was willing to support way back in the 1970s). Perhaps Nixon had the right idea.
As the saying goes: “God save the United States and this Honorable Court!”