Preemptive Opinions and the Affordable Care Act

Gerard N. Magliocca

One issue that I have explored in my scholarship is the idea of a "preemptive opinion." What is a preemptive opinion? It's a Supreme Court decision that comes during a transition between constitutional generations and crafts new doctrine designed to thwart the agenda of the ascending popular movement. Three examples are Worcester v. Georgia in 1832, which attacked Andrew Jackson's policy toward Native Americans, Dred Scott v. Sandford in 1857, which declared the Republican Party's position on slavery in the territories unconstitutional, and Pollock v. Farmers' Loan and Trust Co. in 1895, which struck down the federal income tax sponsored by William Jennings Bryan.

These rare cases have three traits in common. First, the Court reaches out to decide the merits when it could easily avoid doing so. Second, the opinion issued is exceptionally broad. Third, the Court adopts a new legal theory to invalidate the statute at issue that draws on a basic understanding of liberty or equality. How does the challenge to the individual mandate compare? We won't know until the Court decides (if they uphold the statute, then the opinion won't be preemptive), but the potential for one is there.

1. Deciding Unnecessary Questions: We know that the Court can avoid the merits by holding that the Anti-Tax Injunction Act bars consideration of these lawsuits until at least 2014. Ironically, this was the same jurisdictional hurdle that the Court ignored when it wanted to decide the constitutionality of the income tax statute in Pollock.

2. An Exceptionally Broad Opinion: There is a big difference between an opinion that strikes down the individual mandate and one that invalidates the entire Act (with a non-severability analysis). The Court's opinion could also be viewed as sweeping if it accepts the Spending Clause argument against the Medicaid provisions of the Act, or holds that Congress may not regulate inactivity under any circumstances (as opposed to just saying that it cannot do so in this situation).

3. A New Legal Theory: The argument that Congress may not regulate inactivity is new and does rely in part on a libertarian belief about not being forced to buy something against your will.

One final note: Some preemptive opinions are terrible (Dred Scott), while others are not (Worcester). Thus, using this term to describe the Court's decision on the Affordable Care Act is descriptive rather than normative.
Posted 8:29 AM by Gerard N. Magliocca [link]