By Simon Lazarus, Public Policy Counsel, National Senior Citizens Law Center and author of the 2009 ACS Issue Brief, "Mandatory Health Insurance: Is It Constitutional?"
ACS has this morning released a new issue brief by me, "The Health Care Lawsuits: Unraveling A Century of Constitutional Law and The Fabric of Modern American Government." This evening, from 7 - 8:30 p.m., ACS's Virginia Lawyer Chapter and the George Mason University School of Law Student Chapter are co-sponsoring a debate between GMU professor Ilya Somin, who is Editor of the Supreme Court Economic Review, and myself, moderated by Christopher Hayes of The Nation, over the issues vetted in the issue brief.
The brief explains why the pending health care reform challenges constitute a bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as "Lochnerism," which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. (Lochner v. New York, a 1905 Supreme Court decision that held maximum working hours legislation unconstitutional, launched and came to symbolize this period of conservative judicial activism.)
The legal theories behind the lawsuits take dead aim at three bedrock understandings that inform the vision of a democratically governed, economically robust nation-state first reflected in Chief Justice John Marshall's foundational decisions interpreting the constitutional provisions prescribing federal economic policy authority, and reaffirmed in all Supreme Court decisions since the New Deal era. These understandings are:
1. The federal government exists and is empowered to address objectives that states acting individually lack, in the words of the Framers, the "competence" to handle on their own. As Justice Anthony Kennedy expressed the principle, concurring in United States v. Lopez (1995): "Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy."
2. To tackle those "truly national" problems, the federal government has the flexibility to pick solutions that are the most "competent" in practice. In the words of Justice Antonin Scalia, concurring in Gonzales v. Raich (2005) the national government "possesses every power needed to make [its solution] effective."
3. The democratic branches, not the judiciary, have the principal constitutional writ to shape economic policy, and, accordingly, the courts are to defer to Congress and give it the running room necessary to target objectives and craft effective solutions.
The brief shows that individual responsibility provision as well as other targeted ACA features, cannot be overturned without violating these basic understandings and the specific doctrinal rules and principles implementing them. In turn, such a decision will call into question the constitutional bases for, and hence trigger copycat challenges to provisions of myriad landmark laws and programs - safety net programs such as Medicare, Medicaid, and Social Security; civil rights law guarantees against private discrimination by places of public accommodation or in the workplace; federal guarantees in education, health, and transportation; and environmental protection. As the judiciary disposes of these ensuing suits, it will jostle against and upstage Congress and the President as a direction-setter and micro-manager of national economic policy.
In place of a constitutional jurisprudence that prioritizes effective and responsive national governance, the pending health care reform challengers would substitute a radically different regime. As stated by 38 leading Republican members of the House of Representatives in an amicus curiae brief filed in one of the cases:
Congress cannot pass just any law that seems to most efficiently address a national problem.
This self-styled "precept," which in similar form appears ubiquitously in briefs, argument transcripts, and even judicial opinions impugning the ACA, is a recipe for barring the Federal government from effectively meeting national needs - precisely what Chief Justice Marshall, in McCulloch v. Maryland (1819), instructed could "never" have been the Framers' intent - to prevent Congress from "exercis[ing] its best judgment . . . clog[ging] and embarrass[ing] its execution by withholding the most appropriate means." Overturning the ACA exemplifies this impact. If nine or, more realistically five, life-tenured justices can block an undisputedly rational solution for an economic problem so big and so urgent, what limit is there on the Court's capacity to hamstring federal stewardship of the national economy?
Perhaps more significant than specific radical changes to substantive law are below-the-radar ways in which endorsement of the health reform challenges will accelerate the Supreme Court majority's penchant for empowering itself and weakening Congress, as a rival policy maker and political player. This particular bid for judicial supremacy will loom particularly portentous because of its political importance and the centrality of health care to Congress' constitutional authority to regulate the national economy. That prospect should set off alarm bells, and not just for supporters of health reform.