When President Obama stated last month that for the Supreme Court to strike down all or part of the Patient Protection and Affordable Care Act would be “an unprecedented, extraordinary step,” he was doing more than laying down the gauntlet to the Supreme Court. He was also grappling with a problem that is central to our constitutional scheme.
Obama protested that invalidating the Act would be “unprecedented” and “extraordinary” because it would “overturn… a law that was passed by a strong majority of a democratically elected Congress.”
Welcome to life under our Constitution. There have been those who have tended to view that document as a sort of infallible scripture; the late Sen. Sam Ervin comes to mind (if you remember Watergate, you’ll remember him). But one’s enthusiasm for that document is directly proportional to one’s tolerance for living with uncertainty. Like most scriptures, the Constitution is full of ambiguity, not to mention principles that are in ultimately unresolvable tension.
The Affordable Care Act, or ObamaCare if you will, plays directly into these ambiguities and unresolvable tensions. The biggest issue is the individual mandate, the requirement that many Americans purchase health insurance. Congress asserted the authority to impose the requirement under the Commerce Clause, which on its face simply authorizes Congress to regulate commerce among the states.
Of course, it is near-impossible to say in a vacuum what it means to regulate interstate commerce; the phrase is like so many in the Constitution and its amendments which bear no fixed and reliable meaning. Think of equal protection, due process, cruel and unusual punishment, or the right of the people to bear arms. Clear as mud, the lot of them. You cannot know what those phrases mean until judges have interpreted and applied them — and even then you may not be certain.
Whether forcing people to buy health insurance falls under Congress’ Commerce Clause power thus cannot be resolved by looking at the clause itself; the words will tell you nothing. The determinant is not the text of the clause but — at least ostensibly — whether the mandate is sanctioned by Supreme Court precedent.
Yet even if that entire body of precedent could be reduced to precise rules, it probably would not answer the question of whether the individual mandate will ultimately survive. There are bodies of precedent pulling in both directions; either one could plausibly control the outcome. When, at his confirmation hearings, Chief Justice Roberts claimed his job was just calling balls and strikes, he was being disingenuous. The very concept of balls and strikes presupposes a strike zone, and constitutional interpretation is full of competing strike zones.
In fact, there aren’t even reliable rules for choosing among these strike zones. There are lots of different judicial approaches to constitutional interpretation that might arguably assist in choosing between bodies of precedent. The Oxford Companion to the Supreme Court lists six: historical, textual, structural, doctrinal, ethical, and prudential. So if, let us imagine, a justice were consistently to follow one mode of interpretation, you might be able to figure out where that justice would land on a given issue.
However, experience shows that, whatever they claim, justices tend to play the field with these approaches, and, worse, seem to apply methodologies that lead them to reach outcomes that are politically to their liking. In other words, if you want to guess how the Supreme Court will rule on an issue, look at the individual justices’ politics, not at their stated principles, and count noses.
It would be naive to expostulate that the justices are somehow not “doing justice” when they play this game. Constitutional interpretation is not usually about justice, since constitutional interpretation seldom goes to matters of equity. But there is common feeling it should not be about politics. Almost everyone claims to want judges to be apolitical, but what most people who say that typically mean is that they don’t want judges playing the other side’s politics; playing the politics of one’s own side is just viewed as hewing to appropriate methodologies of constitutional interpretation.
The fact is, we don’t really know from our national experience what truly apolitical judicial construction of the Constitution would look like. We have seldom if ever had it.
Obama knew this, so his remark to the Supreme Court really was an appeal to political norms, not jurisprudential ones. No doubt what he truly meant was that: a) the crisis in health care funding has the power to destroy the economy over time; b) an enormous expenditure of political courage and capital had been required to pass a law to avert that catastrophe; c) there is little prospect that we as a nation can summon the will for a second try; and d) in the absence of any norms, there is nothing forcing the court to invalidate the Act and precipitate the catastrophe.
Simply put, if the Supreme Court sinks the lifeboats, we’ll probably drown, and the Founding Fathers never put a gun to the Justices’ heads and ordered them to sink the lifeboats.
Problems with superlegitimacy
But the language Obama used was redolent of the normal saws, found in thousands of judicial opinions, that one branch should respect the others. Only Obama’s phrase about the “strong majority of a democratically elected Congress” betrays the real dynamics of his appeal. This law, he seemed to be saying, was “super-legitimate,” the overwhelming expression of the overwhelming majority. Routine garden-variety political partisanship so often evident on the Supreme Court should yield to it, he was intimating.
There were at least three problems with this approach.
First, the premise happens not to be true: the Act was passed almost exclusively by Democrats, and barely cleared the cloture threshold in the Senate, after which the voters, largely in indignation over that law, destroyed the Democratic super-majority in the Senate and the Democratic power in the house: nothing like a “strong majority.”
Second, the president does not always respect the will of Congress either. Exhibit A: an anti-same-sex marriage law, the Defense of Marriage Act, passed by far greater Congressional majorities than were afforded the Affordable Care Act. Obama’s administration now refuses to defend DOMA against court challenges. (A refusal I happen to applaud, but one Obama should own while talking about ObamaCare.)
Third, there is no existing norm of judicial deference when it comes to Constitutional interpretation. As of 2002, the Supreme Court had struck 158 federal laws as unconstitutional. The tradition started with Marbury v. Madison (1803). Where the court, according to its own approaches to constitutional interpretation (however politically animated) and its own reading of the Constitution in light thereof, has found all or part of a federal statute unconstitutional, it has stricken it.
None of this is to say that the president was wrong to suggest that striking the Affordable Care Act would put the country in a terrible jam. He was only wrong to imply that there are any existing norms to keep the Supreme Court from doing it.
The court is going to do what it pleases, and we all are going to have to live with that. Or maybe die with it.
Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com