an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Let’s begin with a useful distinction of Jack’s and Sandy’s: between the ordinary, low politics of winning and losing elections and enacting laws, and the high politics of constitutional meaning and constitutional change. In simple low politics terms, Obama won yesterday. The two-word headline version of the day’s news is: “Obamacare Upheld.” That is as far into the story as a lot of voters will go. That’s why many conservative commentators and actors in low politics, such as Michelle Bachmann on the steps of the Supreme Court, immediately attacked the ruling in the harshest terms as a defeat and a betrayal. They think they lost—and in terms of low politics, they did. This ruling will help bolster the President’s case for re-election by underscoring the legitimacy of his central policy achievement, whereas a ruling the other way would have lent support to many different lines of political attack against him.
The decision was the most important court victory for liberalism in my lifetime. For all that Chief Justice Roberts gave conservative movement activists in his compromise ruling yesterday—and he gave them a lot—he gave liberals something even more precious.
To see why, we need to look beyond high politics and low politics and toward the background social conditions and assumptions that shape all kinds of politics.
Yesterday’s decision was a fascinating kind of compromise. The conventional description of what happened yesterday (if one can call it conventional after less than 24 hours) has been that Chief Justice Roberts would have struck down the mandate under one clause (Commerce) but he upheld it under another clause (the power to tax for the general welfare). That is not a precise description of what happened. The Chief made a broader claim: “The Federal Government does not have the power to order people to buy health insurance”—period, under any of its powers. “Section 5000A would therefore be unconstitutional if read as a command.” The solution the Chief found was to hold that the mandate can fairly be read as no command at all, but rather as an incentive: you either buy insurance, or you pay a tax. Your choice. And of course, “The Federal Government does have the power to impose a tax on those without health insurance.” In other words, the Chief found that it was reasonable to read the mandatory exhortation out of the law. This is a (slightly different) version of the compromise I imagined in a post on this blog a few weeks ago: striking down the mandatory command but leaving in place the tax penalty.
This kind of compromise does more than just give a boost to Rehnquist-era precedents limiting the Commerce Clause. It strikes a broader libertarian pose, boldly blocking any future federal forays into mandatory broccoli-buying. And it does so with considerable swagger, stating bluntly, of a nation in which the government can command the purchase of insurance: “That is not the country the Framers of our Constitution envisioned.” Listen to Roberts carefully: he is talking liberty talk, not just enumerated powers talk. And yet, at the same time, by leaving undisturbed the functional provision of the law—5000A(b), which says you have to pay a penalty on your income taxes if you don’t have insurance—the Chief Justice hands supporters of Obamacare an essentially complete policy victory.
One way to understand this compromise, already filtering out into the blogosphere, is that Roberts pulled a Marbury, giving in on the outcome in this specific case but claiming a longer-term victory on the level of constitutional doctrine and high politics. This view seems to me mistaken. The specific new doctrine announced yesterday—the activity/inactivity distinction that yesterday’s opinion created out of whole cloth—has little future utility. There are simply not all that many times that the federal government has ever or will ever want to regulate inactivity (and anyway, from now on, lawmakers are on notice that they should use the taxing power). The Commerce Clause language certainly moves the needle back from Raich in the direction of Lopez, but that is a subtle shift of interest only to constitutional lawyers. (It’s not even clear that the Commerce Clause language is formally a holding; I think there is a strong case that it is all dicta, since it is not necessary to reach any part of the Court’s result.) The spending clause holding could well have more substantial doctrinal reverberations, but that is very hard to predict.
Stepping back from constitutional doctrine, what happened yesterday? Basically, one really important thing happened. The Affordable Care Act was upheld essentially in its entirety. This means we are headed for a long-term change in the basic social bargain in the United States. Once this law has been in place a few years, it will simply become politically impossible to go back to a world in which large swaths of the population were regularly denied access to health insurance because of pre-existing conditions, as they are today. The glib libertarian vision of young men (and it is always young men) free to go without health insurance (and freeload if they get sick, of course) will gradually lose its grip on the public consciousness. Americans of the future will simply come to expect that they are going to have health insurance—either they will literally have insurance coverage, or else they will be paying a tax that entitles them to a de facto catastrophic policy in the sense that if they get really sick, they can always buy insurance then, and cannot be turned away. This will be part of our social compact.
Of course, some people will disagree with Obamacare for decades to come; I’m sure people will fight Obamacare for as long as people fought Social Security and Medicare. But over time these things become part of the firmament. They stop being actively politically contested. They become background facts of politics, assumptions most of us basically share. Yesterday’s decision sets that process in motion, and I don’t think it can be stopped. That is why, despite many doctrinal bones the Chief threw to the likes of Randy Barnett, the Federalist Society, and the Tea Party, despite all the foundations this decision tried to lay down for future limits on federal power, the decision was simply a massive victory both for President Obama and for American liberalism.