Whither Rational Basis and the Affordable Care Act?

Adam Winkler

If there was one thing missing from yesterday’s Supreme Court argument on the Affordable Care Act’s minimum coverage provision, it was rationality. Or at least rationality review. That’s the standard of review the Supreme Court has applied consistently for over seventy years to Congress’s purported exercise of its power to regulate interstate commerce. “We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce,” explained the Court in Gonzales v. Raich, “but only whether a ‘rational basis’ exists for so concluding.”

Yet although this standard strongly favors the government in the health care case, Solicitor General Donald Verrilli did not emphasize it in his presentation to the Justices. In fact, he all but ignored it. Although Verrilli did warn the Court of its “solemn obligation to respect the judgments of the democratically accountable branches of government,” one might have expected him to remind the Justices repeatedly of the applicability of the rational basis test. Instead, he only once referred to Congress having the authority to use “reasonably adapted” means.

A perfect place for Verrilli to have reminded the Justices about rationality review was in response to a question by Justice Kennedy. “Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed…. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is a, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” The answer, which Verrilli didn’t give, is quite clearly no. The Fair Labor Standards Act of 1938 (U.S. v. Darby); the Civil Rights Act (Katzenbach v. McClung); the Agricultural Adjustment Act applied to a farmer growing wheat for his own farm (Wickard v. Filburn); and the Controlled Substances Act applied to marijuana grown for personal consumption (Gonzales v. Raich) all went a step beyond what prior cases allowed and reshaped the relationship between individuals and the government. And they all applied rational basis review, in which the heavy burden of justification rests with the challenger.

Justice Kennedy’s question may suggest, however, that Verilli had little to gain by emphasizing rational basis review. The current swing vote on the Court has shown a fondness for applying rational basis in an unusually non-deferential way. In landmark gay rights cases like Romer v. Evans and, arguably, Lawrence v. Texas, Kennedy used rational basis with bite to strike down laws under the Fourteenth Amendment that might have been expected to survive traditional rational basis review. The ACA case may be Kennedy’s opportunity to import a strong version of rational basis into the Commerce Clause – one that, at once, presumes the constitutionality of laws and imposes on the government a heavy burden of justification. It wouldn’t be consistent with rational basis as we know it but it would be consistent with Justice Kennedy as we know him.