Court could use case to redefine boundaries of federal power
By Jonathan Cohn
Next week the Supreme Court hears oral arguments in the lawsuits challenging the Affordable Care Act. But is it really the case of the century" as pundits have started calling it? Its difficult to say without knowing the outcome.
Presently that distinction belongs to
Bush v. Gore a decision that truly altered history. Just think how the years after 2001 would have unfolded if Al Gore had been president.
But
Bush v. Gore didnt change constitutional doctrine. The five justices voting to end the Florida recount and make Bush president wrote that their argument was limited to the present circumstances in other words that they were not making broader arguments about federal power over elections and interpretation of the equal protection clause.
That claim provoked widespread derision within the legal establishment which took the statement as a sign even the judges understood they were standing on a weak legal foundation. But the justices may get their way. Most experts still consider
Bush v. Gore bad law.
Rejecting the Affordable Care Act could deprive 30 million people of health insurance weaken the coverage for tens of millions more and alter one-sixth of the economy. In those respects obviously it would be a highly consequential decision. But such a ruling could also have have far-reaching legal effects the kind
Bush v. Gore did not.
At least in theory the court could use this case to redefine the boundaries of federal power in a way that the courts have not done in nearly a century.
I generally leave the sophisticated constitutional analysis to Jeff Rosen my (much) more informed colleague. But you dont have to be a legal expert to spot three key

questions before the Court each of which could lead the justices to establish new constitutional doctrine:
1.) What are the limits of the federal governments power to regulate interstate commerce?
Defenders of the law claim that the individual mandate which requires most non-poor people to obtain insurance or pay a penalty falls within its power to regulate commerce among the states. A long line of precedents suggests the defenders of the law are right.
Ever since the New Deal the Court has held that federal power here is very broad. If its a legitimately federal matter as the health care economy certainly seems to be then the government has virtually unlimited authority to regulate it. A majority of the justices may disagree. But if so theyll need to break new ground that is theyll have to establish a limit on the commerce power that does not now exist.
For example critics of the law suggest that the commerce power does not extend to regulating inactivity" which is their term for declining to obtain insurance for future medical expenses. A majority of justices could decide to adopt that reasoning. But if they do the justices will be drawing a distinction that the court has never recognized before.
Judge
Laurence Silberman the highly respected conservative who sits on the D.C. Circuit made this point in his opinion
upholding the law:
No Supreme Court case has ever held or implied that Congresss Commerce Clause authority is limited to individuals who are presently engaging in an activity involving or substantially affecting interstate commerce. ... To be sure a number of the Supreme Courts Commerce Clause cases have used the word activity" to describe behavior that was either regarded as within or without Congresss authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way because the facts of those cases did not raise the questionpresented hereof whether inactivity" can also be regulated. In short we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.
Silberman went on to note that the right to be free from federal regulation is not

absolute and yields to the imperative that Congress be free to forge national solutions to national problems no matter how localor seemingly passivetheir individual origins."
Do five justices of the Supreme Court disagree? And if so are they suggesting the constitution doesnt authorize national solutions to what are clearly national problems? Its possible as
Jeffrey Toobin warns in the New Yorker:
In order to strike down health-care reform the new Republican Justices would have to change the underlying constitutional law which they have proved themselves more than capable of doing. They have already cut a swath through the Courts precedents on such issues as race abortion and campaign finance and its possible that they will assemble the votes to do the same on the scope of the Commerce Clause.
2.) What are the limits of the necessary and proper" clause?
The commerce clause isnt the only place in the constitution the government claims to find authority for the mandate. It also cites the necessary and proper" clause. Specifically the government claims that the mandate is necessary" for carrying out its plan to regulate the price of health insurance (a goal even the laws critics recognize is by itself legitimate) and a proper" means for doing so.
Here too the government has the power of precedent on its side. Chief Justice John Marshall famously established this idea in
McCullough v. Maryland which is to federal power what flour is to cake. Through the years the court has largely stood by this broad interpretation most recently in 2010 in
Comstock v. United States. In that case Chief Justice John Roberts was part of a five-member majority that ruled the federal government could take action rationally related" and reasonably adapted" to one of its explicit constitutional duties.
The individual mandate would seem to meet those two criteria rather easily. Insurance mandates are certainly common for more voluntary activities like driving a car or living in a flood plain. And by enacting the mandate Congress was following the advice of non-partisan experts including those at the Congressional Budget Office who said that a mandate was essential to maximizing insurance coverage and reducing the price of insurance through a system of private health benefits.
Again the Supreme Court could disagree. The justices can say whatever they want to say. But to do so honestly theyd need to revisit
Comstock and at least implicitly
McCollough. And Justice Antonin Scalia in particular would have to find some way to explain away his concurring opinion in
Gonzales v. Raich in which he stated Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce and when a failure to take such action might undercut legitimate regulations. This is precisely the argument that the administration and its allies make about the mandate: That without it regulations of the insurance industry wont work as well.
Without a broad reading of the necessary and proper clause lawyers for libertarians can start asking other questions and potentially undermining other federal programs most of us take for granted. If you accept this logic Northwestern law professor
Andrew Koppelman wrote recently then it is not clear how say the Environmental Protection Agency could survive since there is no enumerated power to keep the countrys air breathable or its water drinkable.
Ironically some conservatives might also come to rue such a decision. After all if its unconstitutional to compel contributions towards private health insurance then surely its unconstitutional to compel contributions toward private investment accounts which happens to be the idea many conservatives still have for replacing Social Security. As
Simon Lazarus counsel for the National Senior Citizens Law Center noted last year in
Slate two of the conservative appellate judges who rejected these lawsuits cited that very possibility in their rulings.
3.) Is Medicaid coercive to the states?
This is the sleeper issue of the case. Medicaid is the joint federal-state insurance program for low-income people. The states run the program but they do so under guidelines set by the federal government which provides a large portion of the funding.
The Affordable Care Act expands Medicaid eligibility guidelines significantly so that starting in 2004 anybody with incomes below 133 percent of the poverty line can receive it. The result will be approximately 15 million more people with Medicaid coverage according to projections from the CBO. The federal government is picking up the vast majority of this cost at least for the first few years but states would have to provide the rest and many dont want to do so.
In theory the states have a choice: They can always drop out of Medicaid altogether since no law compels them to participate. But in the lawsuit states are saying the government is actually coercing them in effect making the states an offer they cant refuse. As their argument goes states have become so dependent on Medicaid funding for their low-income populations that the prospect of giving up that money is unthinkable giving the federal government a nearly free hand to shape the program.
Again precedent is on the federal governments side here: Past court decisions have established that federal funding is basically a gift" to the states one for which the federal government is free to set the terms. The justices could use this case to change that understanding but if they do theyll be establishing a principle that could undermine a lot of existing programs.
Samuel Bagnestos a professor at the University of Michigan wrote an
amicus brief on behalf consumer advocates including the Childrens Defense Fund and American Association of People With Disabilities. Via e-mail he summarized the import of a ruling that the Medicaid is unconstitutional:
If the Court holds that the ACAs Medicaid expansion is unconstitutional such a holding could put any number of cooperative state-federal programs at constitutional risk. The most obviously vulnerable would be Medicaid itself -- even as it existed before the ACAs amendments to it. If the petitioners are right that the large amount of federal money at stake coerces states into accepting new Medicaid conditions by leaving them with no realistic choice but to accept them then it is hard to explain why the same large amount of federal money does not coerce states into continuing to accept the conditions that have long applied to Medicaid funding. The many federal statutes that impose conditions on federal aid to education would also be at severe constitutional risk because those conditions are attached to large amounts of federal funding that states may feel they cannot realistically turn down. These statutes include Title I of the Elementary and Secondary Education Act -- the most recent reauthorization of which was the No Child Left Behind Act -- and Title IX of the Education Amendments of 1972.
Of course its possible the court will duck these big questions altogether. It could still decide to rule that the lawsuit is premature because the law has not taken effect yet. It could decide that the individual mandate is a legitimate exercise of congressional authority to levy taxes an argument I have always supported but even some more liberal judges have eyed skeptically and leave it at that. Or it could issue a broad ruling accepting the governments case that the law falls clearly within established precedents just as Silberman and another conservative appellate judge Jeffrey Sutton have.
If that happens historians will probably come to see these cases much as the legal establishment did until very recently: As a weak bid by conservatives to overturn

legally what they could not block politically. But theres no way to know until the justices make their decision.
Update: Ill be writing about the case extensively in this space over the next two weeks. But my overall argument hasnt changed since
last January when I wrote a lengthy article on the legal issues in play.
Jonathan Cohn is a senior editor at The New Republic.