We've heard this argument before -- a federal law aimed at advancing national interests is actually a threat to liberty. As former Solicitor General Walter Dellinger noted in a recent piece for the Washington Post, challengers to Social Security, to the minimum wage, to laws banning private restaurant owners from discriminating against who they serve, claimed those pieces of social legislation were all overreaches by the federal government and would, if enacted, erode liberty.
Similar arguments have been lodged against the Affordable Care Act's minimum coverage provision, which includes a relatively mild financial incentive for people to obtain health care coverage starting in 2014. The spin emanating from court-watchers is that Paul Clement, the attorney for the states challenging the health care law, was outstanding, and that the court's five conservative justices appear ready to invalidate the law's integral provision.
Others, however, noted that it's rather precarious to predict a Supreme Court opinion based on oral argument theatrics. We'll know for sure how sound the spin is, likely sometime in June.
What we do know is that if the high court's conservative wing does indeed strike the minimum coverage provision, they will do so by actively ignoring or overriding precedent. Typically conservatives decry activist judges, but regarding the Obama administration's signature domestic achievement, many conservatives are itching for judicial activism.
The Constitution provides Congress the powers to regulate commerce, to tax and spend for the general welfare of the nation, and to enact laws necessary and proper to buttress these powers. All of those powers have been interpreted by the Supreme Court as broad ones. In fact the high court's most recent opinion on the commerce clause, in the 2005 case, Gonzales v. Raich, upheld a federal drug law banning home-grown marijuana as a valid exercise of its commerce clause power. In a concurring opinion in Raich, Justice Antontin Scalia wrote, "Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those interstate activities that do not themselves substantially affect interstate commerce."
The ACA seeks to regulate a market that has significantly more impact on our national economy. The health care market accounts for 17 percent of the U.S. economy. A primary reason that tens of millions have been shut out of the market is skyrocketing premiums. (Many more are also kept out of the health care market because insurance companies have discriminated against those with pre-existing conditions, another aspect the ACA corrects.)
During oral argument Justice Elena Kagan succinctly laid out the problem, saying that out-of-control premiums are due to the large numbers of people who do not join the health care insurance market, putting off the need for insurance, shifting costs to the insured. You have to consider the uninsured in the aggregate, Kagan said. "Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service."
Clement responded by arguing that if the court were to uphold the minimum coverage provision, there would be no limit on what Congress could regulate. Clement for instance turned to other markets, such as the clean energy and automobile markets. He told Kagan that his refusal to "buy an electric car is forcing up the price of an electric car," and making it more difficult, if not impossible, for many others to buy electric cars.
Kagan, however, noted that the health care market is not an analogous situation, saying "you are entitled to health care when you go to an emergency room, when you go to a doctor, even if you can't pay for it."
While Clement and some of the court's more conservative justices used the word unprecedented to describe the health care law's minimum coverage provision, Justice Ruth Bader Ginsburg noted that in the 1930s Congress "saw a real problem of people needing to have old age and survivor's insurance. And yes, they did it through a tax, but they said everybody has got to be in it because if we don't have the healthy in it, there's not going to be the money to pay for the ones who become old or disabled or widowed. So they required everyone to contribute."
What truly is radical is the economic theory the state and individual challengers are pushing, which calls for greatly limiting the ability of Congress to address national concerns. It's an argument that longs for the days when courts actively shut down congressional attempts to solve national problems.