The most obvious response by commentators to the decision by Judge Roger Vinson that the Affordable Care Act is unconstitutional is a correct one: This is just another step in a long process that will, sooner or later, result in a definitive decision by the Supreme Court.
But it provides an occasion to take a look at the curious institution of judicial review as it has grown up in the United States. Americans take this function of courts more or less for granted, and the concept -- that a court can void legislation for constitutionality -- has now taken hold around the world. But it is worth examining how it is practiced here and elsewhere.
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I don't propose to go through Judge Vinson's opinion; I think he is wrong. Abler pens than mine have already tackled the manifold flaws in his reasoning. Mark Hall of Wake Forest Law School* has done double duty with a tightly reasoned paper dissecting the flawed argument that the so-called "individual mandate" is an unconstitutional regulation of "inactivity," and a shorter post pointing out the judge's seemingly conscious adoption of the rhetoric of the Tea Party, comparing the "mandate" to, among other things, the Stamp Act that sparked the American revolution.
My mother didn't raise a boy stupid enough to predict which way this Supreme Court will decide the issue. I will say confidently, however, that Judge Vinson's opinion, with its partisan rhetoric and sloppy, talk-radio reasoning, will not form the template of any eventual Supreme Court opinion. That part of the opinion is an embarrassment, not because I disagree with the conclusion but because -- like some of the opinions of the late Justice William O. Douglas or the late Chief Justice Warren Burger -- it reflects delusions of grandeur, the manic enthusiasm of a judge settling old scores. Say what you will about our current justices, most of them are skilled lawyers and know how to produce a document that reads like a judicial opinion rather than, as Hall calls this one, a "Tea Party manifesto."
But the immediate concern is that Judge Vinson's opinion has apparently convinced a number of the state plaintiffs that the act is now dead until and unless brought to life by another decision of a higher court. A number of state attorneys general involved in the lawsuit have announced that they will cease any effort to comply with the law, including the parts that are already are in effect. The Obama administration has stated that the law remains in effect pending appeal, and plans to issue regulations and seek funding for the law.
The resulting doubt is corrosive. It is possible that the administration will seek and get a stay of the opinion's mandate. Good judicial manners would impel Judge Vinson to issue one, and if he refuses, the Court of Appeals should do so. But whether that happens or not, we might pause for a minute to consider for a moment the legal oddity of a single trial judge reaching out by means of an interim opinion (especially in a situation where two other federal judges have upheld the law) to bring complex, time-dependent federal statutory machinery into doubt.
Judicial review is a wonderful institution. It may be America's single greatest gift to the rule of law worldwide. Originally, other countries regarded the idea as theoretically absurd and practically dangerous. But after the World War II, more and more countries came to appreciate the utility of a judicial check on the political branches. It has now been copied around the world, by countries as diverse as France, Germany, Russia, Brazil, and South Korea. The European Union maintains a Court of Human Rights that has some power of judicial review over legislation of member countries. Even the United Kingdom, whose doughty common lawyers for generations thumped angry canes at the very notion of courts reviewing acts of an omnipotent parliament, has now provided a mechanism by which its highest court can certify statutes as invalid. But in virtually no other country in the world would a local trial judge's order even be thought capable of wiping out a huge, intricate federal statute.
That's because judicial review is, as constitutional lawyers say, strong medicine. In a country with a fair and open political system, the acts of the sovereign legislature need to be accorded at least a presumption of validity. Whenever a court steps in to void them -- no matter how solid its grounds for doing so -- democratic self-government has received a check. If courts issue these checks too often, or on flimsy grounds, they risk undermining their own legitimacy and that of the political system.
For that reason, in most countries that have judicial review today, it is a power than can be exercised only by a specialized "constitutional court," whose main business is to assess the constitutionality of laws. Germany's Constitutional Court provided the model for this kind of tribunal. It has been copied more often than has our system by which courts of ordinary jurisdiction exercise the power of review.
In Germany, the constitutionality of the Affordable Care Act would probably have been decided by now, permitting the nation to get on about its business
In Germany, the constitutionality of the Affordable Care Act would probably have been decided by now, permitting the nation to get on about its business. That's because the Constitutional Court has original jurisdiction over all constitutional challenges to legislation. Minority members of the federal legislature, or state governments (like the plaintiffs in the Florida case) can bring an action against a statute as soon as it is enacted, and the court's specialists will deliver an opinion. Individuals who believe their rights have been violated can also petition the court for relief; and a German trial judge is required to stay proceedings in any case where the constitutionality of a statute is brought into doubt. The issue of constitutionality is then referred to the Constitutional Court, which resolves the question, then returns the case to the trial court.
France also has a specialized constitutional court (with the Cartesian fillip that its constitutional court can't hear challenges to executive acts -- separation of powers, Montesquieu and all that, n'est-ce pas? -- which are heard by an executive branch Council of State). In France, minority members of Parliament can obtain a ruling of constitutionality after a new law has been passed but before it can be put into effect.
Brazil's system allows trial judges to hold laws unconstitutional -- but until the country's Supreme Federal Court rules on the law, the lower court's decision binds only the individual parties. In virtually every country I am aware of, the power to invalidate legislation is kept in a few hands, which are at least in theory available to provide timely guidance to citizens and the other branches of government.
Compare our system, in which trial courts may issue conflicting decisions (as has happened with the Affordable Care Act); different Courts of Appeals will evaluate those decisions on different schedules, and the Supreme Court will weigh in when the issue has bounced around below, often for a matter of years. (In fact, the current cases may not even produce that review; there are enough technical issues of standing and jurisdiction to permit the court to dismiss these cases and wait for others, after the law is in effect.)
Our system does permit a broad judicial dialogue on the Constitution, and permits the courts to give Congress warning and a chance to repair legislation that is under challenge. (The Senate Judiciary Committee will hold a hearing tomorrow that will review the act's validity, and could in theory lead to tweaks that would moot the current suit. It won't, though. congressional Republicans, who rightly or wrongly smell blood in the water, seem to me unlikely to allow any genuine repair to the system.)
But our system keeps the issue in doubt for longer than necessary, to the detriment of public policy, and it allows a local judge to seize the limelight for longer than his or her qualifications might charitably be thought to justify.
The reason our system works this way is that, contrary to what many Americans believe, our Constitution actually doesn't provide for judicial review. The power of courts to invalidate state laws is perhaps implied in the text; the power to strike down acts of Congress isn't there at all. In the 1803 case of Marbury v. Madison, Chief Justice John Marshall decided that his court, at least, must have that power in order to make real the promise of a written Constitution (the first written national constitution in the world) as "a superior, paramount law, unchangeable by ordinary means." Since then, the federal courts have exercised that power, at first diffidently (only two acts of Congress were invalidated between 1787 and the Civil War) and then more energetically during the Gilded Act. Judicial review of Congressional acts subsided after the 1937 New Deal crisis almost wrecked the court. But it revived, building to a crescendo in the Rehnquist years, when, the joke went, an act of Congress came to the court with a heavy presumption of unconstitutionality. Because the system simply grew, without a master plan, there are few restrictions on its functioning other than courts' own self-restraint.
I don't know that a European-style system would necessarily be a better one. At any rate, we probably won't get there without a constitutional amendment, and seeking such an amendment seems to me a fool's errand. Recently the estimable Sanford Levinson arraigned me (for an article elsewhere) on charges of "Constitution worship." I have to plead not guilty; I take my second commandment as seriously as my Second Amendment. But I do think revisions of the text are unlikely, in the current climate, to produce something better. Sue me.
But amid the current uproar over Judge Vinson's decision (which Andrew Cohen presciently predicted would occur), it's worth thinking about the strangeness, in world terms, of allowing such an obscure jurist to throw a monkey-wrench into the national works.
*This post originally stated that Mark Hall taught at Seton Hall Law School. We regret the error.
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