The Political Origins of Health Care Reform's Constitutional Problems

In the midst of the Supreme Court’s consideration of the constitutionality of the individual mandate to purchase health insurance within the Affordable Care Act, it is worth pausing to remember why the mandate was part of the president’s health care reform legislation in the first place.

There was, of course, widespread support for “health care reform” in the early months of the Obama administration. Yet, Democrats understood that a Bill Clinton style single-payer plan would have been a nonstarter politically. Likewise, an outright expansion of Medicare and Medicaid to cover the uninsured and uninsureable would have required substantial new taxes up front to fund new direct public expenditures. The “individual mandate” solved both of the problems. 

First, a mandate to purchase insurance would nominally allow many people to keep private insurance while providing a pretense for increasing government intervention in the health care market (including eventually offering a “public option” health plan to compete with private insurers) and, over the long run, breaking down political resistance to a single-payer system. This is what led Jacob Hacker to (approvingly) call the individual mandate a “Trojan Horse” for a single-payer system.

Second, the individual mandate to purchase insurance combined with a mandate for insurers to sell coverage to all comers allowed the government to regulate universal coverage into being without a direct public expenditure. Rather than directly paying for health care for the uninsured through Medicare, Medicaid, or some other public program and financing the program with new taxes or borrowing, the twin mandates promised to hide the cost of insuring the uninsured in everyone else’s health insurance premiums (including the premiums of those forced into the health insurance market by the mandate). This helped the ACA’s supporters create the impression that the law was less costly than it really was since much of its expense would never show up on the government’s books.

The law’s advocates, however, apparently paid little attention to the constitutional niceties of the mandate scheme. The Supreme Court may yet uphold the mandate. However, Congress could have (almost) unquestionably adopted alternative schemes for “universal health insurance” that relied directly on Congress’s power to tax and spend for the general welfare. Instead, Congress gambled on a much more dubious plan involving a claim on its Commerce Clause powers in order to obscure the nature and consequences of “reforming” health care. This cynical political choice left the door open for the Supreme Court to intervene, jeopardizing the whole scheme.

Madison and Enumerated Powers

Over at National Review Online, Rich Lowry has a column discussing how expansive, modern interpretations of the Commerce Clause---such as those which allegedly support the Affordable Care Act---are incompatible with the Founders' vision of a national government of limited powers within a federal system.

In the mind of contemporary progressivism, these words of Madison from the Federalist Papers simply don’t compute: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” They are an antiquated 18th-century sentiment unsuited to our more complex and more sophisticated time, to be ignored when not actively scorned. 

It's a good read, but its strikes me that it is not quite right to invoke Madison (at least the Madison of the Constitutional Convention) as the Father of Enumerated Powers and Federalism.

After all, it was Madison who drafted the so-called "Virginia Plan" (although it was introduced by Edmund Randolph), which framed the Constitutional Convention's deliberations over a replacement for the Articles of Confederation. Under the Virginia Plan, though, the federal Congress was not restricted to a finite set of enumerated powers. rather:

the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress bar the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation

Moreover, Congress would be empowered to "negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union." In other words, under Madison's original plan, Congress could legislate "in all cases" and "negative" or veto an state law the federal government determined to violate the "articles of Union."

Enumerating the powers of Congress was formally brought into the Convention's  discussions by Thomas Patterson's "New Jersey Plan."This proposal would have kept the Articles of Confederation intact while expanding the scope of federal power to include a larger, but still finite, set of specific powers including new authority to collect taxes and regulate commerce between states:

in addition to the powers vested in the United States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandises of foreign growth or manufacture, imported into any part of the United States... to pass Acts for the regulation of trade and commerce as well with foreign nations as with each other

Madison continued to fight for important elements of the Virginia Plan, especially the federal negative over state laws, throughout the Convention.

Certainly, by the time of the pivotal ratification debates in Virginia and New York, Madison adopted a strong limited government, pro-federalism position as he rallied to the watered-down version of federal power in the Constitution as a superior alternative to the inadequate Articles of Confederation. This is evident throughout The Federalist. Later still, when Madison and his political allies were battling Adams, Hamilton, and the emerging Federalist Party over the Alien and Sedition Acts, he took an even stronger states-rights position in the Kentucky and Virginia Resolutions.

All of which is to say that Madison's attitudes about the wisdom of enumerated powers for the federal government and the correct balance of state and national authority changed a lot over time. My own sense, though, is that is is difficult to accurately invoke him as an obvious and consistent supporter of limited federal government. In contrast, Madison's consideration of and support for the united systems of separated powers and checks and balances seems to have been incredibly consistent over time, and Madison well-deserves his reputation as the father of the Constitution.

An Unconstrained Court: Why the Supreme Court Will Strike Down the Health Care Law (If It Wants To)

Most public debates about the Supreme Court's impending action on the Patient Protection and Affordable Care Act (a.k.a. the Presidents health care law or ObamaCare) have focused on the constitutional questions created by the case, particularly whether Congress exceeded its authority under the Commerce Clause by commanding citizens to purchase private health insurance as part of its regulatory scheme. Today at slate.com, Dalia Lithwick proposes a political case for the Supreme Court to uphold the law against these constitutional challenges. In particular, Lithwick asserts that the outcome of the case hinges on the willingness of the Court's five most conservative members---Justices Kennedy, Roberts, Alito, Scalia, and Thomas---to bear the costs of a public backlash against an unpopular decision undoing the law.

What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

Lithwick argues that at least two of the members of the Court's conservative wing, Kennedy and Roberts, can be scared into accepting the law by their reluctance to have the Court dragged into a partisan fight in the wake of a high-profile case decided along partisan lines.

That means that the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court. (Greenhouse points to a Bloomberg News national poll showing that 75 percent of Americans expect the decision to be influenced by the justices’ personal politics.) To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—...erode further the public esteem for the court. Justice Clarence Thomas doesn’t worry much about things like that. I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.

Lithwick doubles down on this line of thought, arguing that the Court's conservatives might strategically "throw" the health care case in order to build up political capital so they have firmer footing to reach conservative results in an imminent stream of cases related to gay marriage, voting rights, and other salient social and civil rights issues.

If I am right about this, some justices may believe that this isn’t a fight worth having....The court isn’t just hearing the health care case this year. It also heard a Texas redistricting case, and the Arizona immigration case. Next year it will hear the Texas affirmative action case, and very likely a case that will question the entire existence of Section 5 of the Voting Rights Act. Oh, and next term, the court may well have to contend with a gay marriage case, and at the rate state legislators are passing patently unconstitutional abortion regulations, it’s not unlikely the court will be revisiting Roe soon thereafter.....Given that line up of future cases, the five conservatives may want to keep their powder dry for now. I think they will. 

I completely agree with Lithwich that the result of the case is likely to hinge on political rather than legal considerations, although I think she is mistaken in her assessment of which way those considerations, especially public opinion, will push.

First, it is manifestly untrue that there is any crisis of confidence in the Supreme Court. Support for the Supreme Court is down slightly from a peak about a decade ago, but it is well within its typical historical range. Moreover, the Supreme Court continues to be, by a substantial degree, the institution of national government in which Americans express the most confidence.

To illustrate the point, the figure below shows data from the General Social Survey. In each survey year, respondents have been asked to express their degree of confidence in each branch of the federal government. (The question wording is below and the resulting data are reported by the variables CONJUDGE, CONLEGIS, and CONFED in the GSS data. Also note that values years for which the GSS was not conducted are imputed by taking the average value of the survey year before and after the missing time point.) The figure shows the proportion of respondents who express "a great deal" of support for each branch. In the 2010 survey (fielded after the Court's decision in Citizens United), 30.5% of respondents reported having a great deal of confidence in the Supreme Court. Since 1973, the average percentage of respondents expressing a great deal of support for the Court is 33.1.  In contrast, in 2010, only 17.0% of GSS respondents express a great deal of confidence in the Executive Branch and only 10.1% express a great deal of confidence in Congress. Contra Lithwick, the Court is entering the health care debate in a very strong position.

I am going to name some institutions in this country. As far as the people running these institutions are concerned, would you say you have a great deal of confidence, only some confidence, or hardly any confidence at all in them?

Likewise, Lithwick is (probably) mistaken in her claim that some of the Court's recent controversial cases---she mentions Bush v. Gore and Citizens United---have harmed the Court's standing in the public's mind. Though we don't have much data on public attitudes toward the Supreme Court since Citizens United, analysis of the public's responses to Bush v. Gore by Jim Gibson, Greg Caldeira, and Lester Kenyatta Spence indicates that the public's long term, diffuse support for the Supreme Court can insulate the institutions of judicial independence from backlash following disagreements with particular decisions of the Supreme Court.

She further errs in her claim that the Court's legitimacy is threatened by a public perception that Supreme Court justice are motivated by ideological or partisan considerations. Again, in a separate paper, Gibson and Caldeira demonstrate that this is not the case. As the Bloomberg survey that Lithwick mentions shows, Americans are broadly realistic about the extent to which Supreme Court justices are motivated by politics as opposed to a "mechanical" application of the law. Americans already know that justices are politicians. Americans are loyal to the Supreme Court because justices apply their politics in a consistent, principled fashion. Indeed, justices' willingness to engage in sincere, non-strategic behavior is precisely the reason that the public distinguishes the business of courts from the business of other political institutions. So, if a conservative majority on the Court is inclined to act on its sincere impulse to invalidate the health care law, they put the legitimacy of the Court in greater risk by hedging their inclination for political purposes than by acting sincerely.

Leaving these arguments aside, Lithwick claims that the conservatives on the Supreme Court may be wise to uphold the Affordable Care Act in order to provide political cover for a prospective string of partisan decisions on cases involving social issues and civil rights. I disagree. It is not at all clear to me how the Court will break on SB 1070 (the Arizona immigration law), Texas's redistricting scheme, or, potentially, on the question of gay marriage. Indeed, as I have argued before, it is entirely plausible that Justice Anthony Kennedy may emerge as a true swing voter across these set of cases, sticking with the conservatives on economic regulation cases and joining the liberals on social issues cases, to lead the Court in staking out a stronger and clearer space of personal liberty in the United States. If Justice Kennedy anticipates leading the Court to invalidate Proposition 8 (which banned same-sex marriage in California), for example, he may want to use the health care case to build up political capital among conservatives for the big liberal-leaning steps to come.

The upshot of all of this is that the Supreme Court is not constrained by public opinion to uphold the Affordable Care Act. As Lithwick notes (and too quickly dismisses) a majority of Americans believe the law to be unconstitutional. If a conservative majority wants to strike down the law (which I think is probable but hardly certain), it can do so without risking the long-term legitimacy of the Supreme Court.

The Court would, of course, encounter intense opposition to its decision among the law's supporters, but it would be compensated for that with intense support among the law's opponents. Indeed, more people would support a decision striking down the law than one upholding it. Moreover, if the Court strikes only the individual mandate (and the companion mandate for insurance companies to sell policies to anyone) but leaves other popular provisions of the law intact, like the requirement for adult children to remain eligible for coverage on their parents' health plans until age 26, the Court might be able to find something like a middle ground that could take some of the edge off opposition to its ruling. Likewise, a series of libertarian-liberal decisions on immigration, gay marriage, abortion and other social issues could potentially quell a more persistent backlash against the Court from the left.

Over the last six decades, the Supreme Court has been at the heart of some of the most salient political debates facing the United States. Among other things, it has integrated public schools, forced major changes in the criminal justice system, ended and restarted the use of the death penalty, banned many restrictions on abortion, and settled a contested presidential election. Despite its frequent descent into the heart of important national controversies, the Court has emerged as and remained the institution of American government in which ordinary citizens have the most faith. A decision to invalidate the Affordable Care Act would undoubtedly embroil the Court in controversy. But, just as it has weathered previous storms, the Supreme Court could most likely undo the president's health care law without placing itself in any lasting jeopardy.

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Excellent.