Conservative intellectuals are feeling giddy. Last week they feasted on the veritable mauling of Solicitor General Donald Verrilli by the Supreme Court’s five conservative justices. (In truth, Verrilli was only questioned by four of the conservatives—Justice Clarence Thomas, true to form, didn’t speak. But we know where his vote lies.) It is now conventional wisdom that health care reform—the Affordable Care Act, to be precise—will be deemed unconstitutional, at least in part. I tell the students in my class at the City College of New York that “five” is the most powerful number in the nation. For as we have seen, five votes on the Supreme Court can pick a president—voters notwithstanding—and five votes could redefine our understanding of Congress’ power under the Commerce Clause of the Constitution—precedents notwithstanding. So maybe the conservative celebration is merited. Yet it is also plausible that an element of hubris has overtaken the right.
Because, in this moment of conservative glee, there are a few things—indisputable facts—that should not be forgotten, factors that might yet transform glee into a moment of hubris as Justice Anthony Kennedy (the likely swing vote) and Chief Justice John Roberts (a slightly less likely swing vote) actually confront the case:
1. Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. circuit—and one of the most conservative judges in the nation—wrote the following, in upholding the constitutionality of the statute:
We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. … That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. … It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
As even Judge Silberman recognized, there is really no question that existing Commerce Clause doctrine squarely supports the law. If the court wants to redefine Commerce Clause doctrine, five votes can do it. But it will be an act of judicial activism and require an entire rewriting of our understanding of what powers Congress does and does not have in its arsenal to deal with national economic problems. Bear in mind, the mandate in this case is conceptually no different from the existing mandate that every employed person pay into the fund that supports Medicare, whether the individual does now, or ever will, benefit from the Medicare system.
2. The very idea of the mandate emerged from the conservative think tanks—the the Heritage Foundation in particular—which were looking for a way to eliminate the free-rider problem in our health care system. “Free loaders,” the bane of the conservative worldview, were getting medical care while contributing nothing to the system. The mandate was the perfect mechanism to insure that since every person consumes health care services at some point, every person should pay his or her fair share of that inevitable need for medical services.
3. Insurance companies have long backed the notion of a mandate, partly because it generates an additional revenue stream for them but also because insurance only works if all those covered also participate in the payment structure. Since by the law of nature, every person will get medical care at some point, every person must in some way participate in the payment structure, or else the entire system will fail or be grossly unfair.
4. Newt Gingrich and Mitt Romney—all their protests notwithstanding—were fervent supporters of the mandate until they began running for president and confronted the buzz saw of Tea Party politics.
In this context, gloating, like that of Peggy Noonan (whose columns I usually enjoy and find modulated and thoughtful), strikes me as dissonant. Here is what she recently wrote in the Wall Street Journal: “Now this week the Supreme Court arguments on Obama Care, which have made that law look so hollow, so careless, that it amounts to a characterological indictment of the administration. The constitutional law professor from the University of Chicago didn’t notice the centerpiece of his agenda was not constitutional? How did that happen?”
The Heritage Foundation’s idea, initially made into law by Mitt Romney, supported by Newt Gingrich, and found constitutional by Judge Silberman is an “indictment” of the president?
Noonan’s tone and edge suggest that the vehemence of the attacks on the Affordable Care Act continue to reflect two deeper ideological problems: first, a reflexive rejection of anything the president has done, successful or not; and second, the continued pretense of adherence to a libertarian philosophical view that government simply should not intervene in markets. Environmental regulations to set fuel-mileage standards? No good. A tax to promote reduced energy consumption? No way. The Fed’s use of its monetary power to resuscitate the economy? Forget about it! Loans to an auto industry when the private sector will not provide working capital to save the industry? No.
Where and when do Republicans believe that government intervention is appropriate? That continues to be the fundamental question we need to debate. Sure there are some fair points of disagreement in the middle, but the absolutism of a Republican dogma that rejects anything at all is startlingly contrary to the history of the nation. Even if the Affordable Care Act seemed more intrusive to some, the larger point it raises about the necessity of government intervention—both to regulate and to save at moments of economic crisis—is central to the debate we should be having.
I would love to hear Mitt Romney explain when and how he wants government to guide our economy forward rather than simply repeat the simple platitude that we should cut tax rates and eliminate regulations. That recent approach hasn’t turned out so well.
Read all of Slate’s coverage of the Affordable Care Act.