Heavy Burden

by Jeffrey Toobin April 9, 2012

It’s well known by now that Donald Verrilli, Jr., the Solicitor General, had an off day at the Supreme Court last Tuesday, when he was called on to defend the constitutionality of the individual mandate, the part of the Affordable Care Act which requires people to buy health insurance. Still, it’s worth noting the magnitude of the challenge that he was facing. The key issue in the case is whether Congress, in passing the law, exceeded its powers under the Commerce Clause of the Constitution, which allows the government to regulate interstate commerce. Consider, then, this question, posed to Verrilli by Justice Anthony M. Kennedy: “Assume for the moment that this”—the mandate—“is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” Every premise of that question was a misperception. The involvement of the federal government in the health-care market is not unprecedented; it dates back nearly fifty years, to the passage of Medicare and Medicaid. The forty million uninsured Americans whose chances for coverage are riding on the outcome of the case are already entered “into commerce,” because others are likely to pay their health-care costs.

Kennedy’s last point, about the “heavy burden” on the government to defend the law, was correct—in 1935. That was when the Supreme Court, in deciding Schechter Poultry Corp. v. United States—a case involving the regulation of the sale of sick chickens—struck down the National Industrial Recovery Act, a principal domestic priority of President Franklin D. Roosevelt, on the ground that it violated the Commerce Clause. Two years later, however, the Court executed its famous “switch in time that saved the Nine” and began upholding the reforms of the New Deal. The Justices came to recognize that national economic problems require national solutions, and they deferred to Congress, usually unanimously, to provide those solutions, under the Commerce Clause.
For example, the Justices had no trouble upholding the Civil Rights Act of 1964, which used the clause to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress.” In other words, Justice Kennedy had it backward. The “heavy burden” is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government.

Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt the insurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”
In the more than seven decades since the New Deal, the Supreme Court has avoided this sort of line-by-line parsing of the policy choices made by legislators. As the Justices have said repeatedly, the courts should overrule the work of Congress only on the rarest occasions. “Conclusory second-guessing of difficult legislative decisions,” Chief Justice William Rehnquist once observed, “is not an attractive way for federal courts to engage in judicial review.” In recent years, the Justices have intervened in these matters solely to protect the rights of minorities shut out of the legislative process. (Insurance companies, though they are few in number, do not count as a “minority.”) Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda. This was most evident in the 2010 case Citizens United v. Federal Election Commission, when the five-Justice majority eviscerated the McCain-Feingold campaign-finance law (not to mention several of its own precedents), because Congress showed insufficiently tender regard for the free-speech rights of corporations. The question now is whether those same five Justices will rewrite—or erase—the health-care law on which Barack Obama has staked his Presidency.
It’s tempting to analyze the case in the context of election-year politics, to game out how Obama might be helped or hurt by the Court’s eventual decision. (Thumbs down on the act discredits the President with moderates—or, maybe, mobilizes his base. Thumbs up, maybe, does the opposite.) But the decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. An adverse decision on the Affordable Care Act could even jeopardize the prospects for conservative legislative priorities, like health-insurance vouchers or private retirement accounts in lieu of Social Security. It is simply not the Supreme Court’s business to be making these kinds of judgments. The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either. ♦

ILLUSTRATION: Tom Bachtell