Construction Literary Magazine

Fall 2020

The Demise of the ACA

The Demise of the ACA

Photograph via the AP

I. Introduction

My last essay in Construction was about the extraordinary benefits of the Affordable Care Act (“ACA”), President Obama’s signature health care law. I noted how the Republicans predictably reacted to its enactment by resorting to their post-Obama Holy Trinity: kneejerk opposition, a vigorous campaign of misinformation and outright lies, and (as per Construction columnist and political savant Anthony Resnick) an uncanny insistence on being on the wrong side of virtually every historical and societal trend since . . . uh . . . the demise of the tri-cornered hat?

The piece was an overview of the ACA’s merits from a policy perspective, focusing on its tangible improvements to the dismal American health care delivery system. Nevertheless, there is a very real possibility that the Supreme Court will soon overturn the ACA, despite the fact that nearly everyone not working at Fox News has acknowledged that the law is manifestly constitutional (including some of the most conservative judges in the country and Ronald Reagan’s former Solicitor General). How did the ACA find itself staring into the abyss?

II. The Affordable Care Act in the Balance

The primary legal dispute over the ACA is whether the “individual mandate,” which (with a few exceptions) assesses a penalty on any American who does not have health insurance by 2014, is valid under Commerce Clause jurisprudence. The Commerce Clause is a constitutional provision that grants Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Supreme Court has expansively interpreted this vague language as giving Congress broad authority to pass laws that have virtually any effect on “interstate” commercial activity, i.e., the movement of any money, goods, or services between two different states. Most famously, in a 1942 case called Wickard v. Filburn, the Court held that Congress could even regulate entirely intrastate, non-commercial activity (in Wickard, a farmer growing wheat for personal consumption) if such activity, viewed in the aggregate, would substantially affect interstate commerce. Armed with this judicial mantle, Congress has used the Commerce Clause to justify a wide array of federal programs and statutory schemes, including, for example, the Sherman Antitrust Act of 1890, the Fair Labor Standards Act of 1938, the Civil Rights Act of 1964, the Environmental Policy Act of 1969, the Controlled Substances Act of 1970, the Americans with Disabilities Act of 1990, and, most importantly, the federal ban on cockfights.

The Obama administration argues that an individual’s choice to obtain health insurance—and associated questions of the insurance’s availability, cost, and benefits—is completely intertwined with interstate commerce: the uninsured pass on costs to the rest of society when they present for health coverage that they then cannot pay for, leading to a subsequent increase in premium prices for everyone else to make up the difference. Moreover, the use of the American health care delivery system is not a choice but is rather a virtual inevitability, thus giving health insurance a paramount role in the interstate commercial system. This argument has, until now, convinced more or less everyone in the legal community (liberal and conservative alike) that the health insurance market clearly affects interstate commerce and that the ACA is obviously constitutional. In fact, nearly every lower court that ruled on the ACA upheld the law, including opinions drafted by extremely conservative Republican judges (one of whom has been described as “a biased judge with a hair-trigger temper and a thinly veiled [conservative] partisan tint to his opinions”).

In opposition, conservative challengers to the law have presented a novel (although, to use the Vulgate, utterly horseshit) legal theory as to its unconstitutionality: that the individual mandate actually regulates inactivity by punishing the choice not to have insurance. If Congress can regulate inactivity, the argument goes, the government can pass a law forcing you to do anything that you otherwise wouldn’t do: buy American cars, carry a cell phone at all times, wear Steelers jerseys to work (which would be an awesome law, by the way), or (most famously) buy broccoli. Conservatives argue that this OUTRAGEOUS government intrusion WILDLY exceeds the scope of the Commerce Clause’s regulation of proactive commercial activity and is an unprecedented Socialist Communist Nazi Mordor Grayskull Voldemort  . . . you get the idea.

The problem with this reasoning is that the choice whether or not to buy broccoli or engage in any of the other allegedly “inactive” commercial decisions have absolutely nothing in common with the choice of whether or not to have health insurance. As Henry Aaron, a Senior Fellow at the Brookings Institute notes, “[when]someone consumes broccoli, one is not normally imposing costs on other consumers that make broccoli more costly or unaffordable. Furthermore, broccoli is not vital to preserving life or reducing pain.” Of course, the exact opposite is true with regard to health care. And unlike the insurance market, inadequacies in the current broccoli, automobile, and cell phone markets have not upended American health care and left comprehensive insurance coverage increasingly unaffordable to most Americans. By all measures, health insurance’s integral role in interstate commerce should mean that the individual mandate, and the ACA, are both clearly constitutional.

But at oral argument in late March, the Court’s conservative majority defied the  conventional wisdom that the ACA would be upheld and expressed deep concerns as to its constitutionality. In particular, Justice Scalia gleefully assaulted the government’s attorney with various Rush Limbaugh-esque talking points, leading many to wonder whether he was judging or himself advocating on behalf of Republican challengers to the law. Indeed, despite the fact that overturning the ACA would essentially be an act of naked partisanship by the Supreme Court’s conservative wing, rather than the result of any principled constitutional analysis, many observers are extremely skeptical that the ACA will survive.

III. The Great Hypocrisy: Judicial Activism and the Conservative Bait-and-Switch

The fact that the conservatives on the Court seem so willing (or even eager) to strike down what is unquestionably a constitutional law may, on the surface, seem peculiar. Both the Court’s current conservatives and the modern Republican party unanimously call for “judicial restraint” while castigating “judicial activism.” As the talking points go, judicial restraint means that judges should defer, whenever possible, to the will of Congress as the representative of the people: personal politics should have nothing to do with one’s ruling, there is absolutely no room for empathy in decision making, and judges must display a commitment “to the text of the Constitution and the vision of the Founding Fathers.” By comparison, judges are activists when their “personal preferences masquerade as interpreting the law” and when they impose “their personal opinions upon the public” under the guise of constitutional analysis. According to many prominent Republicans, activist judges may well be solely responsible for the entirety of America’s current social and financial ills.

But what does this even mean? At this point, most recognize that the concepts of judicial restraint and judicial activism are little more than misunderstood buzzwords (particularly abused by the conservatives who wield them). In a laughable (and obviously idiotic) example, the aptly-named “Conservapedia” lists the following as examples of judicial activism and judicial restraint:

Judicial Activism:

  • Griswold v. Connecticut: a 1965 Supreme Court ruling establishing a constitutional right to possess, distribute and use contraception;
  • Roe v. Wade: a 1973 Supreme Court ruling establishing a constitutional right to abortion;
  • Lawrence v. Texas: a 2003 Supreme Court ruling establishing a constitutional right to engage in consensual homosexual activity;
  • In re Marriage Cases: a 2008 California Supreme Court case holding that California’s ban on gay marriage violated the California Constitution.

Judicial Restraint:

  • Bush v. Gore: a 2000 Supreme Court case that ruled that halted the recount in the Presidential election and handed the presidency to George W. Bush;
  • Boy Scouts v. Dale, a 2000 Supreme Court Case that ruled it constitutional for the Boy Scouts to exclude homosexuals;
  • District of Columbia v. Heller, a 2007 Supreme Court case, which held that the Second Amendment guaranteed individuals the right to own firearms.

Notice a pattern here? Basically, conservatives have branded any decision that they disagree with as being activist, namely, judicial allowance for socially progressive legislation. By comparison, promoting homophobia and gun ownership represents fidelity to the Constitution of the highest order. And of course, overturning the ACA is just an example of the Court exercising its “Constitutionally mandated rule in enforcing limitations on government power and preserving the Constitutional structure of government.” As Jonathan Chait points out, Republicans simply tend to alternate their demands for judicial activism (i.e. striking down laws supporting abortion or gay rights) with incessant and overly dramatic declarations of fealty to judicial restraint (or, as I like to call it, the “Brick Tamland” approach to the judiciary).

The purpose of this discussion is simply to point out that the allegedly “restrained” conservative wing of the Court, which recently gave us the ghastly Citizens United decision (judicial activism of the highest order, as documented by my Construction colleague Shiva Bhaskar), is now on the verge of striking down the manifestly-constitutional ACA on essentially partisan grounds. Such politicking is not just limited to the Supreme Court, either: in the monumentally influential D.C. Circuit, conservative judge Janice Rogers Brown recently penned what was virtually a Tea Party manifesto under guise of a concurring opinion in an attempt to undo almost a century of settled law and return to an era where corporations had almost unfettered constitutional authority to abuse and exploit their employees (an opinion that even prominent conservatives recognized had “no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements” and represented a “blending political and judicial roles”). In the Ninth Circuit, Dubya judicial appointee Milan Smith recently penned a dissenting opinion in which he castigated the majority for halting mining activity in the habitat of an endangered species in part by arguing that the majority’s approach would kill jobs and harm small businesses—an unwarranted Tea Party screed thinly veiled as legal reasoning. Where is the fidelity to Congress and the Constitution in this?

IV. Conclusion

I hope that I am wrong in my assumption that the Supreme Court will, once again, vote along party lines to upend decades of precedent and demolish the clearly constitutional ACA for wholly partisan purposes. I hope that I am wrong that Senate Republicans will stop filibustering President Obama’s judicial nominees for no reason beyond their nebulously “activist” viewpoints, thus perpetuating the state of judicial emergency currently facing the federal bench. I hope that, at the very least, Republicans will descend from Mount Pious, stop preaching from the fork-tongued gospel of judicial restraint, and admit that conservative judges are as politically influenced and opportunistically activist as any other. When I read the Citizens United case, though, I don’t think that we have much hope.

The Supreme Court’s treatment of the ACA has led to one of the few instances in my life when I can say, without hyperbole, that the lives of millions of Americans are quite literally hanging in the balance. If the best we can hope for is that a single conservative Justice truly embraces the so-called judicial restraint that conservatives have been howling about for years, our hopes are slim indeed. I guess we’ll have to see.

Good luck, Affordable Care Act.