Adjudicating the Affordable Care Act

The Spring 2012 class of John Glenn Fellows arrived in time to enjoy festivities occurring at the Supreme Court, just around the corner from their residence at 215 Constitution Avenue, N.E. Along with the rest of us this week they have been treated to three days of oral argument in the case that challenges the constitutionality of the "individual mandate" at the heart of the Affordable Care Act. Officially, the case is known as Department of Health and Human Services, et al v. Florida, et al. Day-by-day transcripts of the proceedings are available here. One of the more thoughtful commentaries I have read is Glenn Thrush's piece in today's Politico. Like virtually everyone else in our nation's capital, the Washington Buckeye feels compelled to comment, but he will confine his remarks to jurisprudential considerations.

For me the key question is whether the Court, whose authority is based on the ideal of impartiality and stare decisis, is obliged to defer to Congress when a majority of the judges deem the substance of the legislation to be unwise. As luck would have it, developing the case for judicial self-restraint requires an excursion back to the 1930s and a wheat field outside Dayton, Ohio.

The administration of President Franklin D. Roosevelt and a Democratic majority in Congress wished to control the production of various products in order to drive up prices, which had been seriously depressed, which is why it's called the Depression. The Agricultural Adjustment Act of 1938, to get straight to the point, set limits on the amount of wheat that farmers could grow. A resourceful Ohio farmer named Roscoe Filburn (pictured above, in his granary, presumably) baked his own bread and argued that consumption of his homegrown wheat had strictly intrastate implications, which meant that the provisions of the Act did not apply to him. The Supreme Court did not agree.

In its argument, a unanimous Court in 1942 cited Chief Justice John Marshall's holding in Gibbons v. Ogden, a landmark case that very early on (1824) set almost no limits on Congressional power under the Commerce Clause. The Court held that farmer Filburn was subject to regulations promulgated by Roosevelt's Secretary of Agriculture (Wickard), and that he was not entitled to grow wheat in excess of his allotment. In essence, the Court upheld an "individual mandate" that farmer Filburn buy his bread at the general store, logic that would seem to me easily applicable to the private health insurance market.

Of course, you could argue it the other way. That would mean citing a line of precedent beginning with U.S. v. E.C. Knight (1895) and running through the many cases of the 1930s used to strike down the economic recovery measures of the New Deal. In those days, it was the liberals who complained about an activist judiciary and who called for deference to the elected branches of government. Later, when the Warren Court was riding high, it was conservatives who argued that judges should refuse to rule on questions that are essentially political, as opposed to legal. Times change.

You and I (along with Respondents in the present case, and together with Justices Roberts, Scalia, Thomas, Alito, and perhaps Kennedy) might agree that the "individual mandate" to purchase health insurance is not the most efficient means of achieving the Affordable Care Act's ends. We might agree, too, that health care ultimately is, like public safety and education, a concern reserved (by the Tenth Amendment) to the states. But those of us with such unorthodox views should above all consider that the rule of precedent is the only thing (aside from impeachment) preventing the judiciary from assuming the powers of a super-legislature whenever it feels like it. Because of its obsession with precedent, judicial self-restraint is an inherently conservative doctrine, which is why it is somewhat unsettling to observe that the self-consciously conservative members of today's Court seem reluctant in the extreme to embrace the idea that the essence of the judicial duty is to "say what the law is" (to quote Chief Justice Marshall) and not to second-guess the elected representatives of the American people.

Stay tuned. And expect a ruling to be handed down in plenty of time for this fall's presidential election campaign, which will be governed by rules laid down by this Court in its controversial Citizens United decision of 2010.

April 1, 2012 update: Today's Washington Post has a couple of columns on healthcare that are worth reading. In "Eat Your Broccoli, Justice Scalia," business writer Steven Pearlstein sketches a scenario in which the Court, led by Chief Justice John Roberts and Associate Justice Anthony Kennedy, would resist the temptation to blow up the Affordable Care Act entirely. On the op-ed page, in "The Court Can't Stop the Health-care Revolution," David Ignatius, citing the leadership role of the Cleveland Clinic, sees some larger trends unfolding that may do more than the Court to determine how healthcare policy unfolds in the U.S.