The following is an essay for our symposium on the constitutionality of the Affordable Care Act by Dawn Johnsen, Walter W. Foskett Professor of Law at the Indiana University Maurer School of Law. She teaches and writes about issues of constitutional law, and previously served as the Acting Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice under President Clinton.

 

Explosive partisan politics and proliferating litigation and commentary surround the Patient Protection and Affordable Care Act.  All of this has obscured the simplicity of the case for Congress's authority to enact the law.  The Commerce Clause basis for the law "“ the issue that has predominated in the courts "“ is straightforward.  The question ultimately for the Supreme Court will be whether it should create a new limit on Congress's authority to use its otherwise-broad power to regulate interstate commerce to address the national health care crisis.

Anyone paying close attention "“ who has slogged through the lengthy opinions, listened to or read about the oral arguments, followed the clever attacks seeking to frame the law as an unprecedented liberty intrusion "“ can appreciate the risk of becoming lost in the weeds.  When the Supreme Court addresses the question, as it surely will, it should resist efforts to portray the law as raising complex, undecided issues, and instead emphasize the degree to which fundamentals support the law.

The Constitution expressly confers on Congress the authority to regulate commerce among the several states.  The Supreme Court long has held that this power is "plenary" "“ a word that means full, unqualified, absolute "“ and gives Congress wide discretion to choose how to address national economic problems. The Court set forth the basics of how to interpret congressional powers almost two centuries ago, in landmark cases every law student studies: McCulloch v. Maryland and Gibbons v. Ogden.  In Gibbons, the Court said of the commerce power: "This power . . . is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."

Applying these bedrock principles to the Affordable Care Act:  Congress quite simply is regulating interstate commerce, just as the Constitution authorizes.  Congress is regulating the interstate insurance market and addressing critical problems of health care "“ a very large and troubled segment of the national economy.

The controversy of course centers on one provision: people who can afford it must either purchase a minimum level of health insurance for care they almost certainly will need at some point, or they must pay a penalty.  Absolutely nothing in existing precedent suggests any constitutional problem with this requirement.  To the contrary, the Necessary and Proper Clause and longstanding precedent emphasize that it is for Congress, not the courts, to choose the specific means of economic regulation.  End of the essential argument.

The Supreme Court certainly will, and should, say much more.  But in doing so, the Court should recognize this challenge for what it is:  an effort to change existing doctrine, to have the judiciary fashion and impose a new limitation on Congress's ability to address and tackle national problems, on behalf of all Americans collectively.

It is useful briefly to recall the historical and political context, because there certainly is precedent for the Supreme Court changing Commerce Clause doctrine.  Since 1937, following an infamous stretch of now-discredited opinions narrowly interpreting "commerce among the several states" to invalidate progressive legislation, the Court nearly always has upheld federal statutes against challenges that they exceeded Congress's authority.  The shift in 1937 of course followed President Franklin D. Roosevelt's proposal to expand the number of Justices who serve on the Court, often described as a Court-packing proposal.  Beginning in the 1980s with Ronald Reagan's election, we saw calls for "states' rights" and limiting federal power, including Congress's power to enact major civil rights statutes and address other major national problems, with what some have called an attempted "federalism revolution."

Under President Reagan and his Attorney General Edwin Meese, the Department of Justice developed explicit new theories and strategies aimed at dramatically changing constitutional doctrine on many issues, including congressional power and federalism.  Lengthy DOJ publications advocated constricting congressional power, including under the Commerce Clause, Section five of the Fourteenth Amendment, and the spending power.  They acknowledged that for fifty years, the Court rarely had found a federal statute beyond Congress's power to enact, but aspired to change that history and doctrine to limit government and shift power from Congress to the states.  Regarding Congress's commerce power, the Department of Justice expressly targeted the Court's opinions in Wickard v. Filburn and United States v. Perez as "inconsistent" with the Reagan/Meese view.

The Reagan/Meese strategy powerfully highlights the importance of judicial appointments, endorsed as a principal means of accomplishing desired constitutional change.  One 1988 DOJ publication, The Constitution in the Year 2000, was written as a guide to selecting judges.  It introduced detailed assessments of numerous issues, including congressional power and federalism, by noting "[t]here are few factors that are more critical to determining the course of the Nation, and yet more often overlooked, than the values and philosophies of the men and women who populate . . . the federal judiciary."

In the 1990s a group of Justices described by some as "the federalism five" struck down federal statutory provisions in several controversial cases.  (Presidents Reagan and George H. W. Bush between them appointed four of those Justices and elevated the fifth to Chief Justice.)  The Court in two of the cases, United States v. Lopez and United States v. Morrison, found that Congress had exceeded its commerce power in enacting the Gun Free School Zones Act and the Violence Against Women Act.  Ultimately, though, the Rehnquist Court did not accept the most extreme theories and challenges to congressional authority, and after about a decade, the "revolution" was fizzling.

Critical for the Affordable Care Act:  even in cabining the commerce power, the Court's reasoning strongly supports the ACA.  The concern of the Lopez and Morrison five-Justice majority was with congressional regulation in areas of traditional state concern that seemed to them too far removed from economic regulation. The ACA raises no such federalism concerns, and instead regulates a very large sector of the national economy. Every Justice except Clarence Thomas strongly reaffirmed Congress's broad authority to regulate the economy.

The question for the Supreme Court thus will be whether it should create a new, unprecedented exception here to Congress's power.  Put differently, should the Court deny "we the people" the ability through our elected representatives to choose how to address our national health care crisis?  As I am sure is clear from that formulation, my view is no.  And I believe the Supreme Court will agree.  The Sixth Circuit's recent ruling upholding the ACA increases confidence that the Supreme Court will get it right, especially in light of Judge Sutton's powerful concurrence.

Those challenging the ACA emphasize a dreaded slippery slope "“ an imagined and imaginative list of purported threats to our liberty that would result from upholding the requirement that people possess a minimum level of health coverage.  Others have persuasively rebutted this concern, but I'll just say:  here, there is no slippery slope.  Unique is a word that often is misused, but here, it applies well.  Congress on our collective behalf has legislated a market-based approach to provide universal health care and eliminate harmful exclusions for preexisting conditions.  Virtually all agree that, in order to provide that care, it is essential to require those who can afford it to pay for insurance for health care they are likely to need.

Whatever one thinks of the law's wisdom, Congress clearly possesses the power to adopt it.  Back in 1937, the Supreme Court rejected a constitutional challenge to the Social Security Act. The Court's reasoning applies equally to the ACA:  "Whether wisdom or unwisdom resides in the scheme of [the statute], it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom."

Posted in Featured, The Constitutionality of the Affordable Care Act

Recommended Citation: Dawn Johnsen, The simple case for the Affordable Care Act’s constitutionality, SCOTUSblog (Aug. 3, 2011, 9:22 AM), http://www.scotusblog.com/2011/08/the-simple-case-for-the-affordable-care-acts-constitutionality/