Those in support of the law argue that Congress is well within its enumerated powers to tax and spend money for the general welfare, the commerce power, and does not commandeer the states under the 10th Amendment. To Jack Balkin, for example, critics of the law “are really claiming that it is unconstitutional to make Americans pay taxes,” while James Blumstein writes that success on this particular suit would require overturning decades of precedent under the Commerce power. This is something that a self-professed “minimalist” Court should not take lightly.
In contrast, those who argue against the law understand it as a quintessential exercise in police powers and thus outside the powers of Congress to regulate. According to Randy Barnett, for example, the text of the Constitution does not authorize this exercise of power, nor has the Court ever upheld anything like it. To David Rivkin and Lee Casey, counsel in the federal suit, allowing this law to stand would essentially put an end to the notion of limited, unenumerated powers. If Congress can do this, they argue, there is simply no limit to what it can do.
Can you tell what is missing from these four accounts?
These debates never cease to amaze me. To the question, is X law unconstitutional, answers are usually given in the form of legal arguments. In other words, whether the health care law is unconstitutional depends on one’s reading of the 10th Amendment, or the Ninth, or the powers of Congress under Article I. This is right out of an “Alice in Wonderland” world that I don’t think many people recognize as their own. Were the Supreme Court to accept review on this case, does anybody really believe that its decision will be controlled by pre-existing law?
I understand these are lawyers and law professors writing these short responses, and to teach in a law school under the legal method must mean that the law means something and that precedent matters. I get that. But surely there is a difference between day-to-day cases and the cases that rivet a nation. Think here Bush v. Gore; a future challenge to the Voting Rights Act; even Citizens United. Does anybody really believe these cases were or would be decided by existing law, and that the justices’ personal preferences played no role at all?
In fairness, Professor Barnett comes closest to the nub of the case. He concedes that it is a safe bet to assume that five justices will choose not to overturn the law. Yet in the following sentence, he appears to give the game away:
But what if the bill turns out to be supremely unpopular? What if one or both houses of Congress flip parties because of it? What if majorities in Congress favor repeal but are blocked by a Senate filibuster or a presidential veto? Still as confident about five votes?
I agree with Barnett that the justices will not choose to step into this morass. I also agree that the Court is influenced by context and public opinion. This is simply another way of saying that the law will play a secondary role, if any role at all. The rest of it is just window-dressing. No need to bother wasting our time.