Five questions that matter

The following is an essay for our symposium on the Constitutionality of the Affordable Care Act by Bradley Joondeph, Professor of Law at Santa Clara University. Professor Joondeph maintains the ACA Litigation Blog and has published several articles on federalism, judicial behavior, and American constitutional development.

 

Roughly twenty lawsuits challenging the constitutionality of the Patient Protection and Affordable Care Act (or ACA) are currently pending in the lower federal courts. These suits raise a host of issues – from whether the ACA infringes on the constitutional right to privacy, to whether it interferes with the free exercise of religion, to whether it violates the Thirteenth Amendment.

From this huge pool of legal arguments, two claims have emerged as the most plausible, and thus the most likely to reach the Supreme Court. The first is whether the ACA’s minimum essential coverage provision – which requires most Americans to acquire health insurance by January 2014 – exceeds Congress’s enumerated powers. The second (raised only in Florida v. HHS) is whether the ACA’s amendments to Medicaid – which, most notably, require participating states to extend coverage to all adults with incomes up to 138 percent of the federal poverty level – are “so coercive as to pass the point at which pressure turns into compulsion,” and thus constitute a commandeering of the states.

These two claims, in turn, raise a welter of intricate and important constitutional questions. To highlight just a few: Is Congress prohibited from regulating “passive activity” in its regulation of interstate commerce? That is, is it simply “improper” (in the language of the Necessary and Proper Clause) for Congress to force individuals to take action when they have done nothing voluntary to subject themselves to federal regulation? If so, where does this limit come from, and why are such means inappropriate for regulating interstate commerce but constitutional in the execution of other enumerated powers (for instance, by compelling individuals to serve in the military, to serve on juries, and to sell their property seized through eminent domain)? More fundamentally, in assessing whether a federal law is within Congress’s enumerated powers, how do we define the activity being regulated? More concretely, does the ACA’s minimum coverage provision regulate the “passive inactivity” of doing nothing? Or does it instead regulate the activity of obtaining health care services without adequate health coverage, or (more generally) how health care is financed? More abstractly, when is a statutory provision just a means to a legitimate end (and thus subject to deferential review under McCulloch v. Maryland), and when is it an end in itself?

With respect to the Medicaid issue, can conditions imposed on states under a federal spending program – participation in which is formally voluntary – ever be so coercive as to constitute compulsion? If so, how do we define coercion in this context, where the states have no constitutional entitlement to any federal financial assistance in the first place? Is there a judicially manageable standard for distinguishing coercive conditions from those that merely present the states with fiscally and politically difficult choices?

No doubt, the Justices will seriously grapple with these puzzles. All nine are sincerely committed to the contemporary norms of judicial practice, and thus are creatures of doctrinal analysis. But the Justices are also sophisticated actors who understand that, in the broader drama of American constitutional development, their roles go well beyond the rationalization of black-letter constitutional law. In a case of this magnitude – economically, politically, historically – they will be conscious of some much broader questions, issues lying outside the doctrinal frames within which the case will be argued.

To me, the constitutional challenges to the ACA raise five such questions. And how the Justices answer these questions will largely determine the Act’s fate.

1. Is this the type of case in which judicial intervention is appropriate? For the past seventy-five years, the Supreme Court’s conception of its role in our constitutional system has been formed in reaction to the Lochner era and its demise. The persistent, existential question for the Justices has been this: When, exactly, is the Court justified in overriding the majoritarian preferences of the People, as expressed through their elected representatives? The awesome power of judicial review seems particularly appropriate in defense of those interests or principles unlikely to be vindicated through ordinary politics. Is this such a case? Is this an instance where only the Court can safeguard our deeper constitutional commitments against the opportunistic encroachment of the elected branches? Must the Court step in to draw a line – even a completely arbitrary one – lest there be no limit to Congress’s powers? Or is this instead a matter that is highly salient, on which elections are likely to turn, and where the competing constitutional visions are well represented in the political process, such that deference to the elected branches is especially appropriate?

2. Are the states “separately incompetent” to enact meaningful health care reform? As the scholarship of Jack Balkin and others reminds us, the enumeration of powers in Article I, § 8 was the Committee of Detail’s elaboration of Resolution VI of the Virginia plan, which provided that Congress would have the authority “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Thus, an essential, catalytic spirit behind the Constitution was to empower Congress to solve those problems that, owing to coordination problems and spillover effects, the states could not solve on their own. Is health care such a problem? Can there be meaningful health reform on a state-by-state basis, or is it only possible at the national level? And if the states are separately incompetent, would the Court be comfortable placing health care reform akin to the ACA in a constitutional “no man’s land” – beyond Congress’s authority, yet also beyond the states’ practical capacities?

3. Should the greater power insinuate a lesser one? Everyone seems to agree that, under existing precedent, a complete government take-over of health insurance – a tax-and-spend, automatic-enrollment, Medicare-for-all system – would be perfectly constitutional. The ACA is a more modest, more conservative, more incremental approach, which builds on the existing structure of the private insurance industry. Would it be more than just ironic that the more radical solution would be constitutional, while the ACA’s more incremental approach would be invalid? Should the unquestioned constitutionality of a single-payer system inform our constitutional appraisal of a more modest approach? Or are the constitutional issues raised by the two types of reform wholly incommensurate?

4. What is at stake for the Court? This may be the most partisan, ideologically charged case to reach the Court since Bush v. Gore. Despite the intense controversy that surrounded the Justices’ intervention in the 2000 presidential election, the Court seemed to survive that trauma relatively unscathed. Life has gone on. But is the Nation’s tolerance for the appearance of partisanship at the Court like the venom from bee stings: harmless up to a point, but toxic once it exceeds a certain threshold? More generally, how will the Court’s concern for its own institutional legitimacy – its very practical need to appear an arbiter of constitutional principle rather than of partisan politics – affect the Justices’ deliberations? To what extent will they feel impelled to avoid a five-four decision, split along predictable ideological lines? (And might such pressure be particularly acute if the Court, at roughly the same time, decides any of the other high-profile, politically charged cases with the same five-four alignment?)

5. What is at stake for the Chief Justice? From his first day on the job, John Roberts has seemed keenly interested in his legacy as Chief Justice. This will be the biggest case to reach the Roberts Court to date, and it may ultimately be the biggest decision of his tenure. How will that affect the Chief Justice’s thinking? Will he see this case as an opportunity to demonstrate, in a way that every American would understand, that the Court is truly above partisan politics? That his lasting legacy is a deep and abiding commitment to “judicial modesty,” even at the expense of his ideological inclinations? Or will he see this as a case where the Justices must take a heroic stand to defend the basic, structural principles of our constitutional system, no matter the political consequences – to him or to the Court?

For sophisticated observers, these points may be obvious. But some of us who follow the Court closely can get mired, myopically, in a case’s doctrinal details – for instance, noodling endlessly over whether the “substantial effects” test stems exclusively from the Commerce Clause, or from the Commerce and Necessary and Proper Clauses in combination. We can lose sight of the broader plane on which the Supreme Court operates, particularly in deciding cases of this nature. And on that broader plane, it is these external, institutional, and ultimately political questions that tend to drive the Court’s doctrinal solutions, rather than the other way around.

Identifying these broader questions hardly tells us what the Court is likely to do. But perhaps it clarifies what really matters.