If the Court overturns the Affordable Care Act, it will upset a balance of power that has been in place since the New Deal.
When a reporter asked Speaker of the House Nancy Pelosi in October 2009 whether the proposed health care bill was constitutional, she replied, "Are you serious?" Her press spokesman quickly piled on: "That is not a serious question."
At the time she spoke, Pelosi had every right to be incredulous. If the Supreme Court upholds the Patient Protection and Affordable Care Act this spring, there will be nothing remarkable about it. That is because the act is based on notions of national power that have been firmly settled since the New Deal. What would be remarkable is a decision striking down the act's individual mandate to purchase health insurance. And what would be truly revolutionary is a decision striking down the act's extension of Medicaid to increase coverage for the poor. That would throw into doubt the way that modern federal government works with states and it would jeopardize many popular social programs.
In general, Supreme Court Justices are appointed either by the current administration or by the past four or five administrations. (Antonin Scalia and Anthony Kennedy are Reagan appointees; all of the other justices were appointed by more recent presidents.) This makes the Court largely a conservative institution. It is conservative in the sense that collectively its members tend to preserve the basic assumptions of the political regime in which they were appointed. Thus, we can expect that the Court as a whole -- as opposed to any of its individual members -- will tend to uphold the basic constitutional commitments of the New Deal and the civil rights revolution, as inflected by the conservative shift in politics that began with the Reagan administration.
Reagan's election in 1980 led to a more conservative politics and a more conservative judiciary, but it did not fundamentally change basic assumptions about national power. Instead, Reagan's appointees, together with Clarence Thomas (a George H. W. Bush appointee), reinterpreted the meaning of the New Deal in two ways that are relevant here.
First, they held that the New Deal gave the federal government wide-ranging powers under the Commerce Clause to regulate the national economy and any local activities that cumulatively affect the national economy. But Congress could not use its commerce power to regulate local non-economic activities that did not involve federal problems, like possession of guns near schools or violence against women.
Second, they held that the federal government could not require states to help enforce federal laws or federal programs unless the states agreed to do so. However, the federal government could offer the states money on the condition that states participate in federal programs or pass new regulations, as long as there was a reasonable connection between the basic purpose of the funding and the federal requirements. For example, the Court held that Congress could offer highway funding to states on condition that states raise their drinking age to 21, because there was a connection between highway safety and underage drinking.
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We should expect that a majority of the justices will defend these understandings in the health care case. If they do, the challengers will lose. The individual mandate is an essential part of a comprehensive regulation of national health-care markets. In fact, the individual mandate is not really a mandate at all; it offers the uninsured a choice whether to buy insurance or pay a small tax. By creating incentives to buy insurance, the act expands the national risk pool and makes it economically feasible to impose new requirements on health insurers. These include, among other things, the requirement that insurers not turn people away because of a preexisting condition ("guaranteed issue") and the requirement that insurers not charge different premiums based on a consumer's health ("community rating").
Relying on well-settled precedents, the Supreme Court could easily uphold this part of the act under either Congress's powers to regulate interstate commerce or its powers to tax and spend for the general welfare. The challengers argue that the mandate is unprecedented. But of course many important framework statutes -- like the Fair Labor Standards Act and the Social Security Act -- were unprecedented at the time they were adopted.
The Medicaid expansion is also an easy case under existing law. It offers the states new federal funds in return for complying with new federal eligibility requirements that further Medicaid's basic goal of providing health care coverage to the needy. Many federal programs -- including parts of Social Security and federal grants to educational institutions -- have been expanded over the years in similar ways. It is hard to write an opinion that jettisons Medicaid expansion and does not threaten them as well.
If the justices uphold the Affordable Care Act, they will be doing pretty much what they normally do: defending the constitutional assumptions of the current political regime. Moreover, they will be upholding a recent act of Congress that is also the current president's signature legislative achievement. And they will be reaffirming many decades of settled precedent. All in all, there are multiple and overlapping forces pulling toward this result.
But are there situations where the Supreme Court has acted contrary to these basic tendencies? Are there cases where, in an issue of national prominence, the Court has struck down a recent and highly visible act of Congress when the Court was not defending the existing constitutional regime and its basic commitments?
When we look at the history of the Supreme Court, it's hard to find many examples. Bush v. Gore doesn't count. It didn't strike down a congressional statute at all. It just stopped recounts ordered by the Florida courts, effectively handing George W. Bush the presidency, for good or for ill. The 1857 decision in Dred Scott v. Sandford is universally reviled today, but when the Court struck down the Missouri Compromise of 1820 it was doing the bidding of a national political coalition dominated by defenders of slavery, who believed that the compromise had outlived its usefulness. (In fact, Congress had already repealed the Missouri Compromise in 1850, although the facts of Dred Scott occurred while it was still in effect.)
When the justices struck down Franklin Roosevelt's National Recovery Act and other New Deal legislation in the mid 1930s, they were actually defending the constitutional assumptions of the existing regime, which, since 1896, had mostly been dominated by conservative Republicans. It was Roosevelt and his New Dealers who were the insurgents. Only after Roosevelt won increasing Congressional majorities in three successive elections and demonstrated that the public was behind his reforms did the Supreme Court make its famous "switch in time" in 1937, upholding federal labor laws and state minimum wage laws.