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.