An Unpopular Law Is Easier to Strike Down

Many commentators seem pretty sure the Supreme Court will rule against the administration's health reform this week. I don't see why. Then again, I also couldn't understand the earlier consensus that the Court was certain to uphold the law. Two years ago, I thought it was finely balanced and could go either way. I still think that.

Because of the individual mandate, the law is constitutionally novel. And the mandate is not the only aspect of the measure that tests precedent. See Stuart Taylor's column from 2010, which argued that the Medicaid provisions are even more vulnerable to constitutional challenge. It was always possible the Court's conservatives would feel emboldened to strike the law down. Whether they would dare would partly depend on how popular the law was when the decision came around.

The law isn't popular -- because, inexplicably, the administration has made no effort to sell it. In any event, the thing was never clear-cut. It was never unthinkable that the Court would block the law, and the settled unpopularity of the measure has made that result a little more plausible with each passing month.

Yet I never thought it likely that the Court would strike it down. Overturning an enormously important and duly enacted law on a legal technicality -- which is what objections to the individual mandate amount to -- would be a very audacious move. Depending on how the votes split, it would make further mockery of the Court's claim to be above politics. Again, to be sure, the law's unpopularity is important, because the Court's conservatives would expect to have most of the public on their side. It's still a daring, confrontational step, and one that a wise Court, mindful of its long-term standing with the public, would hesitate to take.

I suppose the commentariat's mood changed so abruptly because of the oral arguments earlier this year. The law's opponents did well in those sessions and the administration's team was pitiful -- but the Court isn't going to decide this on the quality of the lawyers appearing before them. That will be the last thing on their minds. Yes, Justice Kennedy, the putative swing vote, had some skeptical-seeming questions, which came as a tremendous shock to the slam-dunk crowd. But why? What did they expect, for heaven's sake? The swing-vote Justice, if he's to play that role with the required gravity, has to go through the motions of wrestling with a difficult issue. I thought it was more interesting that Kennedy gave us a glimpse of his possible rationale for going along with the law:

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

Not exactly elegant -- but there's the "limiting principle" that the Court will feel obliged to adduce if it's to say that the mandate doesn't represent a huge expansion of federal economic power. (The real reason the mandate doesn't represent a huge expansion of federal economic power is that the Court expunged all meaningful limits to that power in previous rulings. But the Court won't want to say that.)

As you know, constitutionality aside, I want the law, with all its flaws, to be upheld, because I think the principle of universal coverage is surpassingly important. If the law were popular, and if the White House had done more -- had done anything, really -- to sell it, I'd be much more confident of the right outcome. We'll see.