"Perhaps," Ezra Klein wrote last week, "the Supreme Court will surprise us on this one"—meaning the Court might not overturn the part of the Affordable Care Act that would require nearly all Americans to maintain at least some amount of healthcare insurance. "But if they don’t, I think the right question will be why so few in the legal academy saw it coming."
The list of constitutional law scholars who have stated publicly that the individual mandate is constitutional includes some of the most famous legal minds in the nation. Laurence Tribe. Kathleen Sullivan. Ronald Dworkin. Lawrence Lessig. Mark Tushnet. Eugene Volokh. These are con law's rockstars, who regularly dominate the lists of most-cited authorities. All believed the individual mandate to be a perfectly acceptable use of Congress's power to regulate the economy or levy taxes. The possibility that they might be wrong sent a couple of them into a tizzy. “I’ve only mispredicted one big Supreme Court case in the last 20 years," said Akhil Amar, another rockstar, told Klein. “That was Bush v. Gore… If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”
It's not really as dramatic as all that. The case—officially Florida v. United States Department of Health and Human Services—will likely be quite closely decided for two reasons that have nothing to do with politics or money or party loyalty. The first reason is a philosophical one: this case pits two very old and fundamental constitutional values against each other in a way that we haven't quite seen before. The second reason stems from the current composition of the Court, which has four conservative to conservative activist judges, four liberal to fairly liberal judges, and Justice Anthony Kennedy. It has never been clear where something like Obamacare fits with Kennedy's view of the Constitution. And that loops back around to the first reason, so let's start there.
At the end of the Revolution, each American colony became, essentially, its own sovereign nation. Like any group of sovereign nations, they had some troubles getting along, especially when it came to trade. Some states tried to impose tariffs on products made in other states, and those states responded with their own protectionist policies. It was kind of a mess. Believing that free trade would ultimately be a better approach, the states entered into a union. They tried this twice; the first time didn't take.
The Constitution, which came out of the second attempt, is largely a multiparty economic treaty. The America of 1789 has much in common with the Eurozone of 2012. In both, sovereign nations gave up their right to individual currencies in favor of a "multinational" one, and they agreed to drop all interstate tariffs and other forms of protectionism. Unlike the Eurozone, however, the American Constitution created a central regulatory agency: the federal Congress. In order to make sure Congress could do its job, the states had to grant it certain powers.
The powers of Congress, listed in Article I of the Constitution, are referred to as "enumerated powers," meaning that Congress can only do the things specifically listed. (The list includes the so-called "commerce clause," which gives Congress the power to regulate commerce "among" the states.) This limitation was by design. The states were concerned that the new government might try to assert itself outside of the agreed-upon boundaries. It was a sentiment reflected by the Tenth Amendment, added not long after the Constitution was ratified, which says that any powers not delegated to Congress were "reserved to the States respectively, or to the people." Among the powers the states had in mind were these things called the "police powers."
The police powers include basically everything that a state government can force an individual to do. Forcing someone to pay income taxes is one such power (and a power not granted to the federal government until 1913). Regulating for the public health (like quarantines), safety (helmet laws, zoning) and morals (blue laws, curfews, banning foie gras and/or Big Gulps) is another. The states didn't want the federal government pushing their locals around. Pushing locals around is the state's job.
These two values are put into direct conflict by the individual mandate provisions of the Affordable Care Act. On one hand, healthcare costs would decrease if everyone in the United States had health insurance, so coercing people to buy health insurance is a way to regulate the economy, and Congress has the power to regulate the economy. On the other hand, this form of coercion is a police power, and it's not a police power specifically enumerated in the list of those granted to Congress.
Conservatives lined up behind the latter value. If Congress can coerce an individual to do something, and exercise a power apparently owned by the states, and they can do so in the name of regulating commerce, then what can't it do? How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?
Where Kennedy stands on all this is something of a mystery. Even his own former law clerks can't seem to agree. About as close as you can get to insight into the way Kennedy might rule is his concurring opinion in US v. Lopez, in 1995. In that case, the Supreme Court struck down a federal law as being outside the scope of Congress's powers under the commerce clause. He wrote: "were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory." You can read that to be in favor of the individual mandate—or against it.
People really seemed to think Kennedy would be pro-mandate, at least until oral arguments, when he levied a series of tough and highly skeptical questions at the Solicitor General arguing the case. But even then, closer inspection revealed some doubt. Nobody knows for sure which direction Justice Kennedy, who is presumably the fulcrum on which this case balances, will tip the scale.
Back to Ezra Klein's question. For a case that is close on both objective and subjective grounds, why are the top legal scholars in the country so certain the law at issue is constitutional? At heart, it's probably wishful thinking. They argued what they believed the law should be. That, ultimately, is a responsibility of everyone in the legal profession; advocacy lies at the heart of the job. When faced with that kind of uncertainty, the best you can do is say what you think the law should be. Justice Kennedy actually does the same thing when he rules on a case. The difference is, when Justice Kennedy comes to believe what the law on mandatory insurance should be, that is what the law is.
Eric Spiegelman went to law school.