The Small Chance the Supreme Court Will Overturn the Health Care Act

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If the Court overturns the Affordable Care Act, it will upset a balance of power that has been in place since the New Deal. 

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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.

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. 

Then, after Roosevelt was finally able to make new appointments, the Supreme Court -- by now stocked with New Dealers -- upheld all of his signature legislative achievements. In fact, Roosevelt's actions -- and his nine Supreme Court appointments -- began a new constitutional regime, with new assumptions about federal power and judicial review.

What about a more recent example, Citizens United? It struck down parts of an important statute, the McCain-Feingold campaign finance law. And, in the process, the Court overturned a 1990 precedent that allowed states to regulate corporate speech. Even here, however, the majority was arguably defending the commitments of the post-1968 civil rights era, as least as they had been interpreted by Reagan-era conservatives. Ever since Buckley v. Valeo in 1976, the Court had held that independent expenditures were entitled to full first amendment protection.

There is one case, largely forgotten today, that fits the bill. It is the 1895 decision in Pollock v. Farmers' Loan and Trust Company. Pollock struck down a recently enacted federal income tax on the grounds that it was a "direct tax" that had to be apportioned by state population. (This would mean that the amount of revenue coming from each state had to be proportional to its population, an impossible standard to meet for any tax based on a percentage of individual income.) This was not the nation's first income tax law: there had been one during the Civil War. The Supreme Court had upheld it unanimously in 1881, and many other precedents supported Congress's power to tax income without apportionment by state population.

The new tax, passed in 1894, was two percent of yearly income over $4,000. It reached only the very richest Americans, primarily in the Northeast -- the "one percent" of their day. The wealthy erupted in anger, arguing that the tax constituted socialism and class warfare against the propertied. Wall Street lawyers quickly challenged the act on behalf of Charles Pollock, who owned ten shares of stock in the Farmers' Loan and Trust Company and wanted to keep the company from paying the tax. The Court wrote a convoluted set of opinions -- of roughly the same quality as Bush v. Gore -- striking down the new law. Justice John Marshall Harlan, famous for his dissent in Plessy v. Ferguson, wrote a furious dissent, arguing that the majority had discarded decades of precedent. Interestingly, Justice Henry Billings Brown, the author of Plessy, agreed: "The decision involves nothing less than the surrender of the taxing power to the moneyed class."

The Pollock decision did not fare well. It was highly unpopular, and made the Court look like a puppet of the rich and powerful. The Court quickly backtracked, upholding a federal estate tax and later a federal corporate tax. By 1913 Pollock was overturned by the Sixteenth Amendment, which established Congress's right to tax income. Chief Justice Charles Evans Hughes later described Pollock as one of the Court's "self-inflicted wounds," along with Dred Scott and the 1870 decision in Hepburn v. Griswold, which, for a brief time, made paper money unconstitutional in the United States.

The Court will probably follow its historical tendencies and uphold the Affordable Care Act. But Pollock suggests why it might not. The Pollock decision arose out of a political panic among conservatives that swept up the Court along with it. Inequality of wealth accelerated in the late nineteenth century, and a left-wing version of agrarian populism had become a powerful force in American politics. Conservatives believed the rising Populist Party was a genuine threat; they feared the specter of socialism and redistribution of wealth. As Justice Harlan explained: 

It was said in argument that the passage of the statute imposing this income tax was an assault by the poor upon the rich, and, by much eloquent speech, this court has been urged to stand in the breach for the protection of the just rights of property against the advancing hosts of socialism.

Harlan scoffed at the idea, but a majority of his colleagues did not. They wanted to nip left-wing populism in the bud, employing what legal historian Gerard Magliocca has called a "preemptive" judicial opinion.

Barack Obama's election in 2008 also caused a wave of conservative mobilization -- the Tea Party -- that is also deeply worried about overweening government, redistribution of wealth to the undeserving, and creeping socialism. The Tea Party genuinely fears for the nation's future, and its desire for political change has pushed the agenda of the Republican Party sharply to the right. The unconstitutionality of the health care bill is by now virtually the official position of the Republican Party, and Republican politicians who once advocated an individual mandate as a responsible alternative to more liberal solutions now decry it as the most important threat to liberty in our time.

Will the Court be affected by this enthusiasm, as the Pollock Court was? The conservatives on the Supreme Court were appointed before the Tea Party's rise, and only Clarence Thomas's views seem to match the Tea Party's. Justices Scalia and Kennedy have made clear that they accept the legitimacy of the New Deal; they have sought only to ensure that Congress is regulating national problems with economic effects. 

We do not know what Chief Justice Roberts and Justice Samuel Alito think, but it is worth noting that the president who appointed them, George W. Bush, had no problem with the exercise of federal power. He supported the No Child Left Behind act, which imposed new requirements on states in exchange for increased federal funding. He also sought to convert Social Security into a system in which individuals would be required to invest part of their retirement accounts with private companies.

Because the Court's members do not have to stand for election, they are not subject to the same pressures as, say, Republican politicians, who, whether out of political ambition or the desire for political survival, have veered rightward to match the demands of their base. All the signs still suggest that the Court will uphold the health care act. But nothing is certain in a time of political ferment and deeply polarized politics. The justices are not statistical regularities; they are individuals with their own combinations of political ideals, hopes, and fears. If all of the conservative justices believed that the health care bill was a harbinger of even more radical possibilities -- a new era of mindless statism and pervasive socialism -- they might seek to nip things in the bud, and risk the political consequences. It is an unlikely scenario, but it has happened before.

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Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project, an interdisciplinary center that studies law and new information technologies. More

Professor Balkin is a member of the American Academy of Arts and Sciences, and the author of over a hundred articles in different fields including constitutional theory, Internet law, freedom of speech, reproductive rights, legal philosophy, and social theory. He writes political and legal commentary at Balkinization. His books include Living Originalism; Constitutional Redemption; The Constitution in 2020 (with Reva Siegel); The State of Play: Law Games and Virtual Worlds (with Beth Noveck); Cybercrime: Digital Cops in a Networked Environment (with James Grimmelmann et al.); Cultural Software: A Theory of Ideology; The Laws of Change: I Ching and the Philosophy of Life; What Brown v. Board of Education Should Have Said; and What Roe v. Wade Should Have Said.

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