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Will the Supreme Court send us back in time?
Starting Monday, March 26, the Supreme Court will be hearing arguments on the constitutionality of the Patient Protection and Affordable Care Act (PDF), or ACA. Here is a handy description from the Centers for Medicare & Medicaid Services of what the law is intended to do.  

The cases that the Supreme Court granted cert (PDF) for were: National Federation of Independent Business, et al., v. Sebelius; U.S. Dept of Health and Human Services, et al., v. Florida, et al. and Florida, et al., v. HHS.

The Supreme Court will hear 5 1/2 hours of argument. On Monday, the Court will hear one hour of argument on whether challenges to the individual insurance mandate are barred by the federal Anti-Injunction Act. On Tuesday, the Court will hear two hours of argument on the constitutionality of the individual insurance mandate. And on Wednesday morning, the Court will hear 90 minutes of argument on the severability issue—whether the ACA should survive if the Court were to strike down the individual  mandate. That afternoon, the Court will hear one hour of argument on the constitutionality of ACA's expansion of the federal Medicaid program.

The Court granted cert to hear the following questions:

(1) Whether the suit brought by respondents to challenge the minimum coverage provision is barred by the Anti-Injunction Act, 26 U.S.C. 7421(A). (Presented in Department of Health and Human Services v. Florida, Docket No. 11-398.)

(2) Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision, the individual mandate. (Presented in various cases.)

(3) "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?" (This question comes from the cert petition (PDF) filed by the challenging states in  Florida, et al v. HHS. (To say it is an argumentative presentation is to understate the case.)

(4) Whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate if it exceeds Congress' limited and enumerated powers under the Constitution.

Over the next four days, Daily Kos will be presenting previews and postmortems of the oral arguments each day. Today's post provides some general thoughts on how the Court might act in this case, through my personal prism as a viewer of the Court through the perspective of a Legal Realist. Each day of oral argument, we will present a detailed legal (much less of a Legal Realist approach) treatment of the issues to be argued in that day's oral argument. After argument, we will present a postmortem of the oral argument.

(Continued below the fold)

First, some general thoughts. It is my view that this case, if one applies the settled precedents, is an easy case—the ACA is clearly constitutional. There can be no question that the health insurance law is national in character. Indeed, the focus on the individual mandate demonstrates that every other aspect of ACA, save the absurd (to me) federalism challenge to the Medicaid expansion provisions, is accepted as within the power of Congress.

Once it is accepted that the federal government can act in the area, the Commerce power exercise by the Congress in ACA is to be judged under a rational basis standard. As the Court enunciated in U.S. v. Comstock, the rational basis standard is applied as follows:

We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States, 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich, 545 U.S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also  United States v. Lopez, 514 U. S. 549, 557 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981).
Comstock involved a civil commitment law whose relationship to interstate commerce was, at least compared to ACA, tenuous. Here no one can argue that the regulation of the national health insurance market is not a valid exercise of Congress' Commerce power.

Further, no one can argue that the individual mandate is not "rationally related to the implementation of a constitutionally enumerated power." Indeed, no one has. The argument that the entire ACA can not be severed from the individual mandate relies upon the argument that not only is the individual mandate rationally related to the entire ACA's scheme of regulation of the national health insurance market, the individual mandate is essential to the efficacy of the regulation enacted by ACA. Surely no one can argue that the individual mandate is not rationally related to Congress' valid exercise of its Commerce power in enacting a national regulation of the health insurance market through ACA.

Why then is this case before the Supreme Court? Because the Supreme Court is just another political actor in our system of government. Sure it has rules and tradition it must at least nod to, but in the end, the Supreme Court does what it wants to do. Yes, I am a Legal Realist in my view of the Court and its actions.

Since the Court is apparently considering not following settled precedent on ACA, the question then is to determine how the Court might act in this case. What will motivate the key justices in this case? Who are the key justices? How will they act?

There are many theories. Some are institutional. Some are focused on the individual justices. Jack Balkin wrote a terrific piece for the Atlantic titled The Small Chance The Supreme Court Will Overturn The Health Care Act. Balkin wrote:

When a reporter asked Speaker of the House Nancy Pelosi in October 2009 whether the proposed health care bill was constitutional, she replied, "Are you serious?" Her press spokesman quickly piled on: "That is not a serious question."

At the time she spoke, Pelosi had every right to be incredulous. If the Supreme Court upholds the Patient Protection and Affordable Care Act this spring, there will be nothing remarkable about it. That is because the act is based on notions of national power that have been firmly settled since the New Deal. What would be remarkable is a decision striking down the act's individual mandate to purchase health insurance. And what would be truly revolutionary is a decision striking down the act's extension of Medicaid to increase coverage for the poor. That would throw into doubt the way that modern federal government works with states and it would jeopardize many popular social programs.

End of discussion? Certainly not. Balkin is nobody's fool:
If the justices uphold the Affordable Care Act, they will be doing pretty much what they normally do: defending the constitutional assumptions of the current political regime. Moreover, they will be upholding a recent act of Congress that is also the current president's signature legislative achievement. And they will be reaffirming many decades of settled precedent. All in all, there are multiple and overlapping forces pulling toward this result. But are there situations where the Supreme Court has acted contrary to these basic tendencies? Are there cases where, in an issue of national prominence, the Court has struck down a recent and highly visible act of Congress when the Court was not defending the existing constitutional regime and its basic commitments?
The answer is yes, of course. The Court goes where it wants. Balkin cites a much neglected act of "judicial activism" by the Court, its decision in Pollock v. Farmers Loan and Trust Company:
There is one case, largely forgotten today, that fits the bill. It is the 1895 decision in Pollock v. Farmers' Loan and Trust Company. Pollock  struck down a recently enacted federal income tax on the grounds that it was a "direct tax" that had to be apportioned by state population. (This would mean that the amount of revenue coming from each state had to be proportional to its population, an impossible standard to meet for any tax based on a percentage of individual income.) This was not the nation's first income tax law: there had been one during the Civil War. The Supreme Court had upheld it unanimously in 1881, and many other precedents supported Congress's power to tax income without apportionment by state population. [...] The Pollock decision did not fare well. It was highly unpopular, and made the Court look like a puppet of the rich and powerful. The Court quickly backtracked, upholding a federal estate tax and later a federal corporate tax. By 1913 Pollock was overturned by the Sixteenth Amendment, which established Congress's right to tax income. Chief Justice Charles Evans Hughes later described Pollock as one of the Court's "self-inflicted wounds," along with Dred Scott and the 1870 decision in Hepburn v. Griswold, which, for a brief time, made paper money unconstitutional in the United States.
Balkin does not believe the Court will take such drastic action against ACA, but also suggests why Pollock might be instructive:
The Court will probably follow its historical tendencies and uphold the Affordable Care Act. But Pollock suggests why it might not. The Pollock  decision arose out of a political panic among conservatives that swept up the Court along with it. Inequality of wealth accelerated in the late nineteenth century, and a left-wing version of agrarian populism had become a powerful force in American politics. Conservatives believed the rising Populist Party was a genuine threat; they feared the specter of socialism and redistribution of wealth.
Sound familiar? "Government takeover of 1/6 of the economy" ring a bell? Balkin notes:
Barack Obama's election in 2008 also caused a wave of conservative mobilization -- the Tea Party -- that is also deeply worried about overweening government, redistribution of wealth to the undeserving, and creeping socialism. The Tea Party genuinely fears for the nation's future, and its desire for political change has pushed the agenda of the Republican Party sharply to the right. The unconstitutionality of the health care bill is by now virtually the official position of the Republican Party, and Republican politicians who once advocated an individual mandate as a responsible alternative to more liberal solutions now decry it as the most important threat to liberty in our time.
Balkin then analyzes the views of Justices Kennedy and Scalia and describes them as "accept[ing] the legitimacy of the New Deal; they have sought only to ensure that Congress is regulating national problems with economic effects." I'm not so sure that they have accepted anything in particular. No doubt their opinions have demonstrated accepting this formulation, but was that a function of what they could accomplish at the time? Will a fifth vote (Alito for O'Connor certainly opens radically conservative vistas) change their tune? And indeed, Chief Justice Roberts stated his public view on the Commerce power in response to a question from Sen. Charles Schumer in his confirmation hearing that would indicate an acceptance of ACA as a valid exercise of the Commerce power. If we go by what has been stated on the record by the justices, there is no doubt ACA will be upheld.

Of course, we cannot. Balkin writes, "If all of the conservative justices believed that the health care bill was a harbinger of even more radical possibilities -- a new era of mindless statism and pervasive socialism -- they might seek to nip things in the bud, and risk the political consequences." I doubt that the conservative justices need to think of ACA as a "harbinger." I feel confident that if there were no institutional or political restraints, the conservative justices would strike down ACA without a moment's thought.

My analysis of what might happen is a bit cruder than Balkin's. Do the conservative justices think they can do it and if they can, what would be the consequences of striking down ACA?

The question of whether they can do it depends, in my view, on what Justice Kennedy might do. Unlike many, if not most, legal commenters, I have no compunction in noting that Chief Justice Roberts is as unprincipled as his predecessor, Chief Justice Rehnquist. He is capable of any vote, even those that fully depart from his stated principles. See Parents Involved. As for Justice Scalia, he is even more unprincipled. By now you probably are aware that Justice Scalia penned a concurrence in Gonzales v. Raich that, were he a principled justice, would make him a sure vote to uphold ACA. It is striking that despite this concurrence, Justice Scalia is perceived to be a sure vote against upholding ACA.  

Justice Scalia wrote, "The relevant question is simply whether the means chosen are 'reasonably adapted' to the attainment of a legitimate end under the commerce power." As discussed above, the answer is undisputably yes with regard to the individual mandate and ACA. But we know Scalia will abandon his stated views at the drop of a hat to achieve his preferred result.

Whether he can achieve his desired result is the key question. Justice Kennedy holds the answer. What Kennedy will do remains the key question, as it so often is. (See Kennedy's deciding votes in the recent 5-4 right to counsel decisions.) What can we expect from Kennedy here? Is he willing to overturn ACA? Does he believe ACA can be treated as sui generis? (To me this requires buying into the activity/inactivity nonsensical distinction.) Is Kennedy concerned about the political fallout of such an action?

There are other related questions: Would Kennedy seek to strike down ACA entirely or just the individual mandate? In our preview of the severability question, we will of course explore Kennedy's record on the issue. But the more interesting, and I believe more important, question is what does Kennedy want as a result here? Justice Kennedy does, in my view, enjoy legislating from the bench. And more so than most justices, he has less pretense about it.

With regard to his stated views, Justice Kennedy joined the majority opinion in Raich, which is a fairly conventional analysis of the Commerce power. However in Comstock, Justice Kennedy issued a fairly expansive concurrence expressing his views on the Necessary and Proper clause:

The operative constitutional provision in this case is the Necessary and Proper Clause. This Court has not held that the  Lee Optical  test, asking if “it might be thought that the particular legislative measure was a rational way to correct” an evil, is the proper test in this context. Rather, under the Necessary and Proper Clause, application of a “rational basis” test should be at least as exacting as it has been in the Commerce Clause cases, if not more so. Indeed, the cases the Court cites in the portion of its opinion referring to “rational basis” are predominantly Commerce Clause cases, and none are due process cases. See  ante,  at 6 (citing  Gonzales v. Raich, 545 U. S. 1 (2005); Lopez, supra; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276 (1981)).

There is an important difference between the two questions, but the Court does not make this distinction clear. Raich, Lopez, and Hodel were all Commerce Clause cases. Those precedents require a tangible link to commerce, not a mere conceivable rational relation, as in Lee Optical. "'[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.'" Lopez, supra, at 557, n. 2 (quoting Hodel, supra, at 311 (Rehnquist, J., concurring in judgment)). The rational basis referred to in the Commerce Clause context is a demonstrated link in fact, based on empirical demonstration. While undoubtedly deferential, this may well be different from the rational-basis test as Lee Optical described it.

If I understand Justice Kennedy correctly, he is stating that he views the rational basis test to be appropriate for legislation that regulates economic activity, but that the rational basis test is not appropriate for cases involving due process claims. Could Kennedy conceivably place a due process claim patina on the objections to the individual mandate? Certainly, if he wants to strike it down. Thus we get back to the question of what Kennedy wants to do. (Also note Kennedy's "clarifications"on the federalism questions as they relate to the Necessary and Proper clause. These could prove critical.)

I am not sure what Justice Kennedy might want to do. This makes the oral arguments particularly interesting. Once we know that, I think we can more fairly predict what the Supreme Court will do with ACA.

One final issue to consider is whether the Court will be enamored of the potential escape hatch from a substantive decision in this term—the one proposed by conservative Judge Brett Kavanagh in his concurrence to the DC Circuit opinion (PDF) upholding ACA. After a lengthy and persuasive discussion of the Anti-Tax Injunction Act, Judge Kavanaugh makes the political argument:

The principle that we avoid premature or unnecessary constitutional decisions applies with special force here. That’s because if we do not decide the constitutional issue now, we may never have to decide it.

First, this case could disappear by 2015 because, by then, Congress may fix the alleged constitutional shortcoming and ensure that the Affordable Care Act’s individual mandate
provision fits comfortably within Congress’s Taxing Clause power. To be clear, I do not take a position here on whether the statute as currently written is justifiable under the Taxing Clause or the Commerce Clause. What I am saying is that the only potential Taxing Clause shortcoming in the current individual mandate provision appears to be relatively slight. And just a minor tweak to the current statutory language would definitively establish the law’s constitutionality under we abide by a series of rules under which we have avoided passing upon a large part of all the constitutional questions pressed upon us for decision.”) (citation, internal quotation marks, and brackets omitted); [...] this discussion about the potential problem with the Government’s Taxing Clause argument also shows how easily Congress could eliminate any such potential problem. [... B]y 2015 Congress might choose to eliminate Section 5000A [...] Or the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional. [...] Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional. See Freytag v. Commissioner, 501 U.S. 868, 906 (1991) (Scalia, J., concurring) [...]

[T]here is the possibility of such legislative action that could obviate the need for the
Judiciary to decide this immensely consequential constitutional issue.

There is the escape hatch for the Court. Want to punt? Adopt this argument. I think this remain the most likely possibility. Does the Court want to be an election issue? Maybe THE election issue? I don't think so.

In any event, tune in tomorrow for our first preview of this very argument.

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