Sunday, June 24, 2012

What the decision will NOT mean

No doubt, there will be all sorts of broad pronouncements about the meaning of the Court's decision once it comes down--tomorrow, Wednesday, or Thursday. And no doubt, it will be a hugely consequential decision--for the Court, for constitutional law, for health policy, and for American politics. It will probably be the most important decision since Bush v. Gore, and perhaps even more important than that. It is a big, big case.

But there is also a tendency to overstate things in the heat of the moment. And there is also an impossibility of knowing the significance of a Supreme Court decision at the moment it is handed down; too much of its ultimate significance necessarily depends on subsequent, contingent events.

So with that perspective in mind, I want to highlight--no matter what some exercised partisans are bound to claim--what the decision almost certainly will not mean.

* If the Court invalidates the individual mandate, it will not mean a return to the Lochner era. The Court surely has no interest in second-guessing most economic legislation, and it could not possibly go back to treating legislation that redistributes income or wealth as presumptively unconstitutional. (To be sure, there are some folks in the camp of challengers who would prefer that course, but it is not going to happen.) Rather, a decision invalidating the minimum coverage provision will be relatively narrow, and find constitutional fault in what makes the mandate (arguably) unique--that it requires Americans to purchase a commercial product from a private third party even though they have taken no voluntary, affirmative act to bring themselves into the ambit of Congress's jurisdiction to regulate commerce. What has made this claim viable from the beginning is that the Court could vindicate it without doing much to disturb existing precedent or to limit Congress in the future. A decision that does no more than forbid Congress from requiring persons to purchase commercial products, when they have no already voluntarily entered the regulated market, is hardly a significant limit on Congress's powers.

* Conversely, if the Court upholds the mandate, it will not signify an end to any limit on Congress's enumerated powers. First, even under the government's view, Congress still would be unable to regulate intrastate activity that is neither economic or commercial in nature, unless it was integral to a broader regulatory scheme. Thus, Lopez  an Morrison (as understood in Raich) would still stand. Further, the Court could rather easily cabin the constitutionality of purchasing mandates to instances in which it was really necessary to a broader regulatory scheme. Some might find such a rule unprincipled, unmoored from precedent, and judicially unmanageable. But a majority of the justices are plainly committed to the principle that Congress's powers are not unlimited, and they would continue to adhere to that rule.

* A decision to invalidate the ACA will not mean that the Court can do anything, no matter what the public and the other branches think. Public opinion is deeply divided on the ACA, with a slight majority disfavoring the Act as a whole and a substantial majority disfavoring the minimum coverage provision. Further, the national government is divided, with each party controlling one house of Congress and the President facing a very difficult reelection campaign. Under these circumstances, the Court has lots of space to render a decision reflecting the justices' sincere constitutional views. Thus, even though such a move would signify that the Court has a rather robust view of its role in American government, it hardly means that the Court would always feel so free. Other cases might present conditions that are far less inviting.

* A decision upholding the ACA will not mean that the Court "folded" to political pressure. Again, the external pressure on the Court at this moment, in this case, is not terribly strong, at least if what we mean is the potential threat to the Court from rendering a particular decision. The bigger threat is long term, over time, if Americans begin to see the Court in increasingly partisan terms. If this concern influences the Court, then I do not think that is rightly called political as much as institutional. Maintaining the Court's institutional integrity over time, as an arbiter of important questions of constitutional meaning, is an important constitutional value in itself--and arguably one far more important than the subtle niceties of constitutional doctrine.

The only issue that might be understated here--and it is hard to use the words "understated" and "ACA litigation" in the same sentence--is the impact of the Medicaid issue. This question has always played a second fiddle to the individual mandate. But in terms of modern understandings of constitutional law and American government, a decision to invalidate the ACA's expansion of Medicaid would be far more disruptive than anything else that might come from the case. No doubt, the Court could draw some arbitrary lines to cabin the impact. But it is unclear how those could remain stable over time. And this is precisely why most people think it won't happen.