Overturning Obamacare ‘would be a game changer’ for Supreme Court

Writing for Mother Jones, Kevin Drum traces the relatively brief journey from 2010, when the Affordable Care Act slipped through Congress on a reconciliation vote, to the day a coalition of Republican attorneys general filed suit challenging the constitutionality of the law to today, as the nation awaits the Supreme court’s ruling on that challenge. The ruling is expected Monday.

The particular constitutional argument, focusing on the “mandate” that requires those who can afford it to buy health insurance, was not taken seriously by mainstream constitutional law scholars. (I wrote a 2010 piece myself about the widespread view that the challenge was a weak one.) The argument is that while the Constitution’s “interstate commerce” clause has often been used to punish or prohibit actions that violated federal efforts to regulate interstate commerce, it had never been used to punish inaction, such as a citizen’s decision not to buy health insurance. Writes Drum:

Two years ago, when President Obama signed the Affordable Care Act into law, the idea that its individual mandate provision was unconstitutional was laughable. There was no case law, no precedent, and frankly, no serious argument that the federal government’s Commerce Clause power didn’t give it the authority to mandate purchase of health insurance if it wanted to. That’s why Democrats didn’t bother looking for a clever alternative—many of which were available—in order to avoid including an explicit mandate in the law. They didn’t think they needed to. Of course it was constitutional.

Now, the mostly wide-held expectation is that the court will strike down the law, or at least strike down the mandate without which key aspects the the law cannot function as they were designed to do.

But Drum, a liberal, piggy-backs on earlier pieces by conservatives who noted that the growing respect given to the no-mandates challenge seems to have been generated by the conservative media echo chamber. This is unprecedented, Drum argues, and an alarming step down the path of Americans seeing the Supreme Court as just one more place where liberals and conservatives carry water for their sides. Drum also writes:

The distinction between activity and inactivity—i.e., whether the federal government can mandate specific activity in addition to prohibiting it—has no historical basis at all. It was invented out of whole cloth. There’s no precedent, no language in the Constitution, and for the most part, not even any discussion about it in the legal literature prior to 2009. It’s simply not something that anyone ever took seriously until it became the only plausible attack line against a piece of liberal legislation that conservatives wanted to overturn.

If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock—but it was also a unanimous decision and, despite FDR’s pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

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Comments (19)

  1. Submitted by Peder DeFor on 06/19/2012 - 10:19 am.


    There is no precedent in prior legal decisions because regulating inactivity had never been tried before! Is Drum putting for the legal theory that unprecedented actions are somehow de facto constitutional?
    There were constitutional scholars who had issue with the individual mandate. They weren’t ‘mainstream’ simply because we’ve elevated left leaning scholars so that only their voiced will be heard. And the idea that no one would have thought this was a problem unless a right wing media echo chamber is kind of insulting. Does anyone doubt that Thomas would have been opposed from day one? Or that other Justices like Scalia and Kennedy would have problems with gov’t interference with individual rights? Even Obama was opposed to an individual mandate back when he was a candidate in 2008.
    One more thing that is faintly ridiculous about the repeated predictions that the court would suffer a loss of prestige if they overturn all or part of Obamacare. Repeated polls have shown that a majority of the public thinks it should be overturned and strong majorities oppose the individual mandate. To suggest that the public as a whole will be upset when the court agrees with them is transparently wishful thinking.

  2. Submitted by Neal Rovick on 06/19/2012 - 11:11 am.

    The faux-pretense that the medical system in the US is not a ward of the state needs to end.

    The biggest purchasers of health care are governments at the behest of tax-payers

    Where is that recognition in the present system and proposed reform?

    With the cry of “freedom” and “free markets”, the US is condemned to economic inefficiency and continued decline.

  3. Submitted by Hiram Foster on 06/19/2012 - 11:41 am.


    I didn’t think then and I don’t think now that the mandate argument had any merit at all. And bear in mind that the mandate is a conservative idea, proposed as an alternative to single payer health insurance, and designed to maintain market features and choice in coverage.

    The fact is, any broad health care reform passed by the Obama administration would have been subjected to some kind of constitutional challenge which the conservative media would have hailed as credible, and which would have been validated by segments of our increasingly politicized judiciary. To me, the suggestion that the president should have pursued a policy that didn’t raise constitutional objections ignores the point that any such choice would have been attacked as unconstitutional by a party, a media, and a set of tame judges, more interested in attacking a presidency they find illegitimate than they are in seeing to the health care needs of the American people. The holding of the Affordable Health Care Act to be unconstitutional to any significant degree, would be an act of tyranny.

  4. Submitted by Nate Abele on 06/19/2012 - 11:49 am.

    You people can’t be serious

    I’m sorry, but…. WHAT?

    Is this a joke? Are you people joking? Do the words ‘enumerated powers’ mean nothing to you?

  5. Submitted by Jon Kingstad on 06/19/2012 - 12:19 pm.

    Drum is right.

    I’m not sure I’d agree entirely with the absence of any “activity/inactivity” distinction or at last not in so many words. And words do make a difference. I used to get enraged over the fact that I had to pay for parking on the street in front of my house by getting a parking permit every month from the local police precinct office. There was no off-street parking. Driving is frankly a necessity in our society. Was I mandated to get the parking permit” of course I was. But if I complained about to a court, they’d have told me that “tut-tut. Driving and owning a car is not a “right”, it is a “privilege” which the state has a right to regulate.” Everyone needs health care, sooner or later. Christian Science parents do not have a choice about having medical care for their children. Does one have a “right” to postpone a health care decision until it becomes a crisis so emergency room treatment is necessary? Or could it be called a “privilege” which society, in its beneficence, has bestowed on us? And which, by the way, could be denied or taxed, if society so chose. That’s the logic (or illogic) of the law which sometimes creates legal fictions to justify what has to be done. And there’s precedent for it. But presto, it is no longer a “mandate”; it’s your lucky you live in a country where we don’t just leave your sorry carcass to die and rot in the streets, as they do in India. So be glad we’ve chosen this easy way for you to pay what we need to do by charging you for the privilege.

    As for “left leaning” and “right leaning scholars”, I grant there is such a thing but in this case, whether one would have predicted that the Supreme Court might overturn this law does not depend on such leanings. The truth is that there is plenty of precedent for the Court to uphold the law and ordinarily Courts do not try to overturn or set new precedent. Unless it is an “activist Court” like the Roberts court. A court that, as Justice Stevens pointed out in his Citizen’s United dissent, had to completely create a new case to accept and then decide because none of the issues the court decided were raised in the proceedings in the lower courts. It’s time for the “constitutional conservatives” to start eating their words about deploring “activist” judges unless of course, anything is “OK if republicans do it.”

  6. Submitted by Dennis Tester on 06/19/2012 - 12:24 pm.

    Where the democrats screwed up

    was in not making the funding mechanism a tax.

    There is all sorts of precedent for mandating citizen participation including social security and medicare, but those programs are paid for with designated taxes. But apparently because the democrats wanted to avoid fighting over the “T” word and handing the republicans a club to bludgeon them with, they chose the unprecedented and unconstitutional route they did.

    They were even given a chance to change their mind and call it a tax in response to a direct question from SCOTUS but they chose not to.

    Oh well.

    This is a win-win for republicans. If the court overturns it, we win and if they uphold it, it energizes our base to ensure we win in November.

    • Submitted by Neal Rovick on 06/19/2012 - 03:01 pm.

      “Win-win”?And the definition


      And the definition of a “win” is short-term political gain–not a “win” in answering the key issue of the time that affects competitiveness, jobs, government spending, deficits, debts, health, and lives.

      In not to distant a future, the growing giants of the budget, health care and defense will be pitted against another for funds–and then even our national security could be sold to the medical/insurance business.

      • Submitted by Dennis Tester on 06/19/2012 - 05:47 pm.

        National defense is a valid

        and constitutional role of governrment. Providing health care is not.

        • Submitted by Neal Rovick on 06/20/2012 - 07:41 am.

          But the hard, cold fact is that many people, including you, rely on the government picking up the cost of medical care, whereas fighting so that a new crop of imperial despots can be installed in the middle east is hardly a driving imperative for most people.

  7. Submitted by Paul Brandon on 06/19/2012 - 01:46 pm.

    Margin of error

    Actually, most polls show a close split for and against the individual mandate (within their margin of error), and clear support for Obamacare as a whole, of which the mandate is an integral part.
    And the distinction between action and inaction is a linguistic one, not a question of constitutional law, which is why the Supreme Court didn’t address it until they became blatantly political.
    The Constitution is mostly about the division of powers between the states and the federal government, and a statement of things that governments can not do.
    What it is not is a list of things that are permissible to government; just because something is not enumerated in the Constitution does not make it unconstitutional.

    The classic example is the establishment of an air force.
    Despite the fact that there is no mention of one in the Constitution (just an army and navy), and there were balloons at the time, no one has questioned the constitutionality of establishing the air force after WWII.

    • Submitted by Dennis Tester on 06/19/2012 - 05:51 pm.

      The 10th Amendment

      “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

      SCOTUS is going to rule that the federal government over-reached.

      • Submitted by Rachel Kahler on 06/20/2012 - 09:40 am.

        The 10th Amendment

        is not the end all be all. It is, at the very least, to be read in the context of Article 1, Section 8, clause 18:
        “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

        That is, the Constitution indicates that Congress has the power to make ALL laws necessary and proper for the carrying out of the Enumerated Powers, including the power to provide for the common welfare of the United States and to regulate interstate commerce. The SCOTUS has long upheld the significance of this clause for many federal laws. The ACA fits easily within one or both of the common welfare or interstate commerce powers and is supported by the Necessary and Proper clause.

        By the way, Constitutionalism only works if you’re familiar with and understand the whole document. Unfortunately, we have inept “constitutionalists” like Bachmann teaching by example.

      • Submitted by Paul Brandon on 06/20/2012 - 10:14 am.


        Note the word.
        It does not mean the same thing as ‘actions’.

  8. Submitted by chuck holtman on 06/19/2012 - 02:03 pm.

    “Game Changer”? Don’t think so.

    In its ruling on the merits in Bush v Gore, and even moreso in its wholly fanciful grounds for issuing an injunction to stop the vote count, the Supreme Court could not have more clearly “chosen up sides in electoral politics.” That horse left the barn a long time ago. I don’t see where Mr DeFor finds reference to a concern about the Court suffering a “loss of prestige,” but I would agree with him that no one on the court should get nervous. Since only a tiny fraction of the public can name either a Supreme Court justice or a provision of the Affordable Care Act, and since the media will scrupulously ensure that the public is entertained and distracted by the latest celebrity news, the justices and those whose interests they serve need hardly be concerned that they will be subject to any public scrutiny.

  9. Submitted by Hiram Foster on 06/19/2012 - 03:16 pm.

    The activity inactivity argument is nonsense. We all do things that have health care implications. Think of it in insurance terms. Let’s say you buy car insurance for a year over which period you didn’t make a claim. Does that mean you didn’t need the insurance? Or since you didn’t make a claim, you were inactive with respect to it?

    The fact is we all benefit from the existence of hospitals and a health care industry whether we are directly using it at any given ,moment just as we benefit from insurance even when we are not filing a claim. The activity at issue is simply the act of living, and incidentally, of getting older.

  10. Submitted by Hiram Foster on 06/19/2012 - 03:19 pm.

    Enumerated powers

    As for the enumerated powers issue, regulation of health insurance and the health insurance industry are clearly regulations of interstate commerce. That issue is a non-starter. There have been Supreme Court cases recently that seemed to have pulled back from the broad Wickard v. Filburn ruling but those were cases involving issues that one could argue, didn’t involve interstate commerce without provoking laughter, such as abuse issues. Health care is national and international business, and may clearly be regulated by Congress.

  11. Submitted by Ray Schoch on 06/19/2012 - 03:39 pm.

    Horses and barns

    “…Is Drum putting for the legal theory that unprecedented actions are somehow de facto constitutional?” I don’t think so, and wonder how Mr. DeFor reached that conclusion.

    “…There were constitutional scholars who had issue with the individual mandate. They weren’t ‘mainstream’ simply because we’ve elevated left leaning scholars so that only their voiced will be heard.” Hahahahahaha.

    “…Even Obama was opposed to an individual mandate back when he was a candidate in 2008…” As far as I can tell, Mr. DeFor is correct about this. Curiously, Mr. Romney thought individual mandates were just fine when he was Governor of Massachusetts, and the citizens of Massachusetts seem to be reasonably well satisfied with the way that system works in their state.

    “…To suggest that the public as a whole will be upset when the court agrees with them is transparently wishful thinking.” I sincerely hope that’s the case, since the polls I’ve come across suggest that the public at large thinks a national health care system is a great idea. A significant minority oppose the individual mandate, but still a minority. I assume Mr. DeFor to be among them.

    Regular readers need not reflect for very long about the sophistry involved in Mr. Tester’s comment. It’s amusing to try to picture his reaction to a national health care system supported by a new tax.

    I’m inclined to agree with Paul Brandon – the distinction between action and inaction is largely semantic in this context, and to echo Brandon, just because something is not enumerated in the Constitution doesn’t mean that it’s automatically unconstitutional. There are a host of examples, including national political parties selecting nominees, and, I might point out, the very concept of judicial review, which is nowhere mentioned in the document, but was established largely by John Marshall’s force of will in Marbury v. Madison.

    While I might not quite go to the extent of calling revocation of the Affordable Health Care Act an act of tyranny, I’m otherwise quite in agreement with Hiram Foster. It makes no difference what shape health care reform might have taken, whatever was proposed and adopted by the Obama administration was going to be – and has been – attacked as unconstitutional by the right wing simply because it came from the Obama presidency. They’re offended that Obama was even elected.

    The complete and total absence of a viable alternative proposal from Republican leaders, whether they be presidential candidates or people in positions of leadership in the House or Senate, simply underscores the policy bankruptcy of the GOP once the conversation has moved into an area that isn’t devoted exclusively to tax cuts. I’d like to see a reporter for the ‘Strib – or MinnPost – ask Michele Bachmann what health care system she’d adopt as a replacement for our current dysfunctional one.

    Sadly, there’s more truth than I’d like to admit to the last sentence of Chuck Holtman’s comment.

  12. Submitted by Hiram Foster on 06/20/2012 - 06:13 am.


    In terms of tyranny, declaring the ACA unconstitutional would be an act of policy making and legislating by an unelected set of individuals in office for life. The colonies rebelled from Great Britain for less. Nowhere in my copy of the constitution do I see any provision which grants the Supreme Court power over health care policy. I defy anyone to point to any such provision of the constitution or any debate or discussion at the constitutional convention that gives or even alludes to the giving of such power to our unelected Supreme Court.

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