Striking Down the ACA Would be a Judicial Power Grab

By Billy Corriher

Supporters of the Affordable Care Act (ACA), the 2010 health care reform bill known to many as “Obamacare,” are discouraged after last week’s oral arguments at the Supreme Court.  The Justices’ questioning of the Solicitor General and his responses to the justices did not bode well for the Government.  The conservatives Justices seemed skeptical that the individual health insurance mandate, the centerpiece of the ACA, is within Congressional power to regulate interstate commerce.  The Court has long taken a broad view of Federal authority over interstate commerce, and striking down the ACA would require a wholesale repudiation of those precedents.

1942 case forms the foundation of modern Commerce Clause jurisprudence.  In Wickard, the Court upheld Congress’s power to limit the production of wheat for home consumption.  There, the Court discusses the scope of the nation’s problem with wheat production. The Court concluded that the affect of one farmer’s wheat on national demand for wheat may be trivial, but “taken together with that of many others similarly situated, [it] is far from trivial.”  The Court overruled older cases that relied on strict legal formulations of Congress’ authority in favor of a broader analysis.  The Court rejected the farmer’s argument that Congress cannot force farmers to “to buy what they could provide for themselves.”  If a farmer’s decision not to buy wheat can be regulated, why can’t one’s decision not to buy health insurance?  Both of those decisions (not to buy something) could be described as “inactivity,” but the Court still upheld the wheat regulation.

In so ruling, the Wickard Court said:

The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.  Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.

I hope the Roberts Court takes a similarly humble and restrained approach.  Striking down the ACA could represent a trend of less deference to Congress.  This Court is the first in decades without a former elected official, and narrowness of experience may be a factor.  The Court was criticized for its ruling, in Citizens United, that “independent” corporate expenditures on elections “do not give rise to corruption or the appearance of corruption.”  These unelected judges think they understand political corruption better than Congress.  We’ll soon find out if they feel the same way about regulating the national market for health care.

The Court could still uphold the ACA, as a tax or as a regulation of commerce.  Justice Kennedy’s questioning was harsh, but he is notoriously unpredictable. The harsh tone of the Justices’ questions could reflect our political atmosphere or Congress’ unpopularity.

The conservatives Justices presented a parade of horribles, the crazy things Congress could do if the ACA is allowed to stand.  Congress will never require Americans to buy broccoli, because it would be political suicide.  Some have also noted that commerce in broccoli is not the same as the national healthcare market.

During oral arguments, the courtroom scoffed at the idea that Congress could quickly  respond to the Court’s decision.  A decision throwing out the ACA would represent a broad assertion of judicial power, at the expense of Congress’ power to address dire national problems.  Now, in the name of protecting individuals from health insurance, these unelected Justices could invalidate Congress’ only far-reaching legislative accomplishment in years.  That is judicial activism.

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