In 1922, the Supreme Court decided that it was a stretch to apply the antitrust laws to baseball, so the Court reasoned that professional baseball was not an activity in interstate commerce. The opinion for this unanimous decision (in Federal Baseball Club v. National League, 259 U.S. 200) was written by no lesser legal beacon than Oliver Wendell Holmes.
Fifty years later, it was grudgingly reaffirmed (in Flood v. Kuhn, 407 U.S. 258 (1972). In his opinion for the 5-3 majority, Twins fan Harry Blackmun observed "the [previous] court chose not to be persuaded;" "the aberration was an established one;" it was confined to baseball; it was an "inconsistency and illogic of long standing that is to be remedied by the Congress and not by this court;" moreover, Congress knew of the Court's approach and chose not to correct it. (!) To acknowledge the plain fact that professional baseball was very much in interstate commerce would have created an unwarranted upheaval in the national pastime. So, as deeply embarrassing as the state of the law was, the Court resigned to follow it for the good of sports fans around the country, doing so strictly on the basis that it decided the case before and should adhere to precedent (stare decisis; "stand by what was decided"). Justice Douglas's dissent called the case "a derelict in the stream of the law that we, as its creator, should remove." (The reserve clause at issue in Kuhn was removed by a labor arbitrator a few years later.)
So - with the cautionary tale of our national pastime behind us - how should the Affordable Care Act fare in 2012?
Challengers to ACA argue that "inactivity" is being regulated; that compelling the purchase of private products is unprecedented (to WaPo's George Will, upholding ACA would be "the last ramp on the road to unlimited government"); that individual liberty requires freedom from having to finance health care. (Let us note up front that it is within Congress's powers simply to withdraw the age limit for Medicare eligibility. And of course, Congress on its own or delegating to government agencies can compel quarantines and vaccinations and impose conditions on insurance companies and who they can insure. They can require that if individuals buy or rent cars, they must have seatbelts and use them, and ... well, you get the point.)
Missing from the arguments of the ACA opponents were the long-standing bedrock principles of judicial deference to a co-equal branch - that acts of Congress are presumed to be constitutional and objectors carry a heavy burden to establish otherwise.
And as for ACA's expansion of Medicaid coverage, the 26 states challenging ACA labored strenuously to concoct a Federal/state constitutional problem, pressing their case in an unusually ham-handed way highlighted by Armando in "One Perspective" (DK, March 25, 2012):
(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 ... filed by the challenging states in Florida, et al v. HHS. To say it is an argumentative presentation is to understate the case.)
But what of the so-called "limiting principle" advanced by J. Kennedy and more witheringly by others to Solicitor General Verrilli (to some scorn for the questions as well as Verrilli's responses) - "Can you identify any limits on the commerce clause?" Now
that is a fair question and it deserves a fair response.
David Cole, Legal Affairs Correspondent for The Nation, stated the answer well:
There is indeed a limiting principle! We are all inevitably participants in the healthcare market (except the Amish, and they are exempt). Unlike the markets for broccoli, health clubs and cellphones, no one can avoid the healthcare market. No one can predict when he or she will have to use it, and almost no one can afford it when he or she does use it. And because we don't allow people to die when they can't pay for emergency care, we provide it to them free at the hospital. Of course, nothing is truly free; hospitals and healthcare providers pass on the cost of caring for those who don't pay to those who do, in higher fees and premiums. So the uninsured shift the cost of their care to the rest of us, increasing the average family's premiums by a hefty $1,000 a year. The ACA's challengers have played on the intuition that it's unfair to require people to buy something they don't want, but the real unfairness is when people irresponsibly fail to pay their fair share and then shift the cost of their own care to others.
Because of these unique features of the healthcare market, upholding this law would not give Congress unfettered power to require us to eat granola, purchase electric cars or join health clubs. Buying those products is not a necessity, as healthcare is; nor does one person's choice not to purchase such products impose substantial and foreseeable costs on others. Upholding the individual mandate would simply establish that where a national market is the victim of free-riders, Congress may address the problem as part of its general authority to regulate that market.
(Objection can be taken to Cole's characterization of those who can't pay for health insurance as "irresponsible" for they may be poor, unemployed or previously denied coverage.) But Cole's core rationale is solid. It echos one of the first advocates for what became the basic principles contained in ACA! Wait for it ...
... the Heritage Foundation.
The concept that health care in America was a right and that mandated insurance coverage was necessary to achieve it, along with expanding Medicaid coverage - all were features embraced by the Heritage Foundation in its 1989 report, "Assuring Affordable Health Care for All Americans":
"[N]either the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement ...
If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate with him, but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him service, even if that means more prudent citizens end up paying the tab.
A mandate on individuals recognizes this implicit contract. Society does feel a moral obligation to insure that its citizens do not suffer from the unavailability of health care. But on the other hand, each household has the obligation, to the extent it is able, to avoid placing demands on society by protecting itself...
A mandate on households certainly would force those with adequate means to obtain insurance protection."
Said so compellingly and by such an unimpeachably conservative Republican source, Senators Corker (R-TN), Grassley (R-IA), seven other Republicans and nine Democrats co-sponsored the concept in S. 334, The Healthy Americans Act (2007). Despite reservations many observers saw in Mr. Justice Kennedy's questions last week, even he acknowledged concern for the costs imposed by the health-care-uninsured.
Health care constitutes 17% of the nation's GDP. It is an increasingly expensive necessity of our lives, outpacing inflation in other fields of commerce and commanding more and more Federal resources to pay its costs. Health insurance has been managed in the past to deny coverage, imposing self-serving plans, premium structures and arcanities worthy of the Federal tax code. Employers are regarding it as a burdensome and unnecessary expense and they are increasingly unwilling to extend insurance plans to non-bargained for employees. Insurers must be eternally - though silently! - grateful that Medicare removed the most costly, highest risk patients from their shoulders.
Health care is undeniably commerce. Health care insurance is, too.
As for whether health care and insurance for it is interstate commerce, the issue to which Holmes clung to neuter the first antitrust case against pro baseball, it is undeniable that health care and insurance covering it are activities in a national marketplace. Many lesser levels of interstate involvement not affecting millions upon millions of people have been declared to be "interstate commerce" and subject to Congress's regulatory power.
With Congressional resolve and no stare decisis fig leaf to confine it, could the Court unwind itself from decades of accepting Congress's exercise of commerce clause power? Yeesss, but how it might do that presents the biggest sticking point in the ACA cases. Much as libertarians and the Koch-founded Cato Institute might desire it, the Court cannot sweep the commerce clause clean. Doing so would be profoundly illegitimate and unwise and if that's not enough, the Court would thereby risk imperiling many programs put forth by conservatives, not to mention placing the Court squarely in the activist mainstream of election politics.
Linda Greenhouse, Scholar at Yale Law school and authoritative analyst of the Supreme Court for 30 years and counting at The New York Times, predicts the Court will uphold ACA (in "Embarrass the Future?" dated April 4, 2012). But tellingly, she cannot say which of Chief Justice Roberts or Justices Kennedy or Alito will help do so. She finds it likely - as do I - that there will be no majority opinion because the Court will split on the rationale:
"I don't think there are five justices who will necessarily agree on a common rationale for their agreed-upon result. In addition, or as an alternative to upholding the individual mandate as an exercise of Congressional authority under the Commerce Clause, some may prefer to treat the individual mandate as a tax, squarely within Congress's taxing power. Others may invoke the 'necessary and proper' clause of Article I, Section 8. Consider that a court that spent nearly six months on the strip search case has barely three months before the end of the current term to decide the future of health care."
As I read Ms. Greenhouse, she argues the Court will uphold ACA in part because of the "categorical positions" advanced by the opponents of the law, a concern fostered by the very questions the Court teed up for decision. Justice Scalia, in particular, seemed to relish second-guessing determinations of legislative policy with the zeal of a one-judge super-Congress.
That underscores another concern, one of the most fundamental. One likely to be beyond notice by Justices Scalia and Thomas-the-silent, but one of compelling interest to Chief Justice Roberts, who is only the 17th person in history to be Chief Justice of the United States. That concern is the legacy of the Court and its unique status as the unelected branch of government.
In "Supreme Court Arguments on the ACA - A Clash of Two World Views" (April 4, 2012) published in The New England Journal of Medicine, Mark Hall writes, "Many legal scholars (including me) believed this would be an easy case, because health insurance so obviously involves interstate commerce and the insurance mandate is unquestionably central to many of the ACA's core unchallenged provisions." Hall, like many other commentators, then recounts how much several judges sounded much like legislators weighing policy options.
Law students are taught to distrust dicta - those parts of opinions that are not essential to the decision. But I am long retired from law practice and feel disposed to dicta when there are lessons to be learned from it. In McCulloch v. Maryland, 17 U.S. 316 (1819), the Supreme Court upheld Congress's power to establish a national bank, resolving a hotly controversial issue in the decades preceding. Writing for his Court and all the courts to follow, here is Chief Justice John Marshall:
"The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law.
... This Government is acknowledged by all to be one of enumerated powers. ... But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.
Although, among the enumerated powers of Government, we do not find the word
'bank' or 'incorporation,' we find the great powers ...[to impose taxes, borrow money, regulate commerce, declare war and to raise and support armies and navies.] The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government. It can never be pretended that these vast powers draw after them others of inferior importance merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended that a Government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the Nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means.
... [W]e must never forget that it is a Constitution we are expounding ... intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." (emphasis added)
note: I expect to be taken to task for these musings on a Sunday morning, so I should clarify two small points in advance. (1) The National League baseball case was not a Constitutional decision. Had it been, J. Blackmun could not so blithely have relied on Congress's inaction to help him with his opinion in Curt Flood's reserve clause case. (2) The author of the Heritage report says he has changed his mind and the Foundation has a general disclaimer that reports released in its name should not be construed as its views. Except in its text as quoted, this report says it was.