© 2024 St. Louis Public Radio
Play Live Radio
Next Up:
0:00
0:00
0:00 0:00
Available On Air Stations

No matter how it decides, health care ruling will be landmark Supreme Court decision

This article first appeared in the St. Louis Beacon, Nov. 15, 2011 - The debate about the power of the federal government is as old as the nation.

It began with the Articles of Confederation and its weak central government. It continued with arguments between Alexander Hamilton and Thomas Jefferson and a bitter fight over the creation of the Bank of the United States. It boiled over in the war against slavery and, later, the states' rights to deny equality to African-Americans. It again divided the country over the New Deal's power to take strong national action to end the Great Depression.

The U.S. Supreme Court announced on Monday its intention to write the next chapter of this national story, after it parses five and one-half hours of legal arguments this spring on the constitutionality of the Affordable Care Act, the controversial health-care law championed by President Barack Obama.

The case the Supreme Court is taking comes originally from Florida, but 25 other states have joined the lawsuit.

It is possible the court could decide almost nothing. One threshold question it agreed to spend 60 minutes hearing is whether it was premature to challenge the individual mandate, which requires everyone to purchase health care or pay a penalty. A law, called the Tax Anti-Injunction Act, says a person can't challenge a tax until he or she pays it and that wouldn't occur until 2015.

But Alan Howard, a constitutional law professor at Saint Louis University law school, doesn't expect such an anti-climactic result. "If at least five justices (and certainly if more than five) can agree on the constitutionality or unconstitutionality of the individual mandate provision, then I think they will reach the merits and not punt on ripeness grounds," he wrote in an email.

The court set aside two hours to decide whether Congress had either the commerce power or taxing power to impose the individual mandate. If the court finds the individual mandate unconstitutional, it could do what the federal appeals court in Atlanta did, and throw out the mandate while leaving the rest of the law intact -- a result with big practical problems because just about everyone acknowledges the mandate is necessary to make the law work.

For that reason, the court has set aside 90 minutes to address whether the entire law should be thrown out if the individual mandate falls. And, finally, it has set aside another 60 minutes to consider whether Congress, as part of its almost limitless spending power, can require states receiving more Medicaid money to expand health-care coverage for the poor in prescribed ways.

That opens the prospect that the Roberts Court could go so far as to announce in effect a constitutional counter-revolution by throwing out the entire law and deciding that Congress does not have powers it has flexed since at least the beginning of the New Deal.

The smart money -- if constitutional scholars are the judge of smart money -- is that the court will adhere to at least 80 years of precedent and find that Congress' commerce power includes the power to regulate one-fifth of the national economy. Chief Justice John Roberts emphasized his respect for precedent in his confirmation hearings, so a decision voiding the entire law and reinterpreting congressional power would appear to be at odds with his promised intentions.

Bruce La Pierre, professor at Washington University Law School, predicted in an email that "the court will uphold the individual mandate as a valid exercise of the commerce power." But he added a warning. "The real action is the Medicaid component of the ACA," he said. "Any decision to limit Congress' power to attach conditions to the expenditure of national funds would go to the heart of our federal system."

Political implications of court's verdict

Whichever course it takes, the court's decision will be announced around July 1, smack in the middle of the next presidential election when the power of the federal government is likely to be a central issue.

If the Roberts Court enacts a counter-revolution in federal-state power relations, it could ignite a strong reaction from Obama's more liberal base. If, on the other hand, it upholds the law, Obama will see it as vindication, but opponents will likely view the election as even more important to ending Washington's domination.

"Whatever the Supreme Court decides," says Mike Wolff, former Missouri Supreme Court judge, "it would be terrible for the country if the vote is 5-4. Law requires some sense of consensus. A 5-4 vote would not be accepted as law. The losing side would perceive it as politics," he wrote in an email.

The five and one-half hours of oral argument that the court announced on Monday is the longest since consideration of the constitutionality of the Voting Rights Act almost half a century ago. That illustrates the importance that the court attaches to the issue, said David Roland, director of the libertarian Freedom Center of Missouri.

"By devoting more argument time to these questions than it has granted to any other issue in the modern era, I think the justices have demonstrated their awareness that any decision they render will have extraordinary implications for the future of the Republic," he said.

Roland added in an email, "The court has agreed to consider questions that go to the very foundation of our constitutional framework: Is there a limit to the power Congress can wield over the lives of individual citizens? Where Congress lacks the power to force states to follow a particular course of action, may it coerce the desired behaviors by threatening to withhold federal funding from states that fail to comply?"

Hours long, even days-long oral arguments were not uncommon in the 19th century, at the time of famous advocates such as Daniel Webster, said Howard. Webster was a leading lawyer in the six-day argument in 1819 over the constitutionality of the Bank of the United States (McCulloch vs. Maryland) and the five-day argument in 1824 over Congress' power to regulate interstate commerce (Gibbons vs. Ogden).

La Pierre said that Chief Justice Marshall's decisions 190 years ago in those two cases set the table for the current argument. Marshall said there are both judicial and political limits on national legislative power. And he predicted correctly in McCulloch, that "the question respecting the extent of the powers actually granted (to Congress) is perpetually arising, and will probably continue to arise, as long as our system shall exist."

In a famous passage from McCulloch, Marshall wrote: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

La Pierre pointed out that "the words 'appropriate,' 'plainly adapted' -- all invite judicial scrutiny." But La Pierre added that "although Marshall laid the groundwork for judicial review as a check on national power...he also laid the groundwork for understanding the limits of national power are primarily political."

Marshall said that political process was the primary check on Congress' Commerce power. He wrote in Gibbons: "The wisdom and discretion of Congress, their identity with the people and the influence which their constituents possess at elections, are ... the sole restraints" on the Commerce power, which is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."

To La Pierre, "The big question in the case is whether....judicial activism will assert a role in superintending the boundaries of national and state power or whether the court will defer to the decisions of the political branches of government -- Congress and President Obama. Of course, deference to the political branches leaves open, as it should in a democracy -- the possibility that a new Congress and a new president would repeal or amend the Affordable Care Act."

La Pierre added, "I would like to think that a self-styled conservative court would defer to the political branches, but if there is to be intervention in the name of protecting the states' role in a federal system of government, my bet is that we would be starting down the road of the rather non-functional federation that is Europe."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.