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Essay: Taking its place in history…


American constitutional history has not moved in a straight line, from the Founding to the 21st Century.  Its development is a wavering line, with twists and turns that were far from predictable.  The amendment process under Article V has followed a meandering path — in fact, the latest amendment, the 27th, dealing with congressional salaries and ratified in 1992, was actually one of the first proposed, in 1789.  Meandering, too, have been the Supreme Court’s interpretations of what the Constitution ultimately means — for any given day and time.

How, then, is it possible to assign a place in history for a new constitutional development?  Does it rank among the most important, and with what can it be compared, closely or loosely?   Where, one may ask, will a Supreme Court ruling on the Patient Protection and Affordable Care Act stand in history?

This coming week, the nine Supreme Court Justices will set out on another constitutional journey, and it probably will be a quick one: it might well be concluded in almost exactly three months.  The three days of hearings on the new federal health care law — the most time set aside for a case in more than four decades — will be saturated with history.  Monday’s argument will focus on an 1867 law, Tuesday’s will talk about precedents going back at least to 1942 and maybe all the way back to 1819, and Wednesday’s will have echoes of states’ rights doctrine all the way from the Philadelphia Convention and its Grand Compromise in 1787.

And, when the Court does rule, probably by late June, few doubt that it will have done something historic.

Without exaggeration, the final ruling has the potential to be the most important declaration on how the Constitution divides up power between national and state governments since the New Deal days some three quarters of a century ago.  Without exaggeration, it could be the most important pronouncement on the federal “safety net” since the Social Security Act was upheld by the Court in 1937.  Without exaggeration, a decision to strike down all or part of the new health law could be the most severe rebuff of Congress’s power over the national economy since the Sick Chicken Case in 1935.  And, without exaggeration, a nullification of the Act in whole or in part could be the most devastating blow to presidential power and prestige since the Steel Seizure Case in 1952.

The law at issue is not directly about civil rights, but for the nation’s working poor, the coming ruling on the law’s validity could be as important to them as a 1938 decision was for racial minorities, essentially starting the modern civil rights revolution.  And for individuals who want to be left alone by their government, the final decision may be a reminder of a 1905 decision that first spelled out a theory of individual liberty that, in time, would contribute importantly decades afterward to that same civil rights revolution.

Yes, it is that important — at least in potential.  Whether or not it lives up to that potential may depend, to a significant degree, on how the Justices react to the 90-minute argument that opens the week on Monday.   Many observers, and certainly most of the media, have been waiting most eagerly for Tuesday’s two-hour argument, when the biggest cog in the entire machinery of the Affordable Care Act, the individual mandate, is up for review.

But, in the end, the Court just might not rule at all on the individual mandate if it were to decide that no challenger had a right to go to court to contest the mandate’s constitutionality.  That is Monday’s issue, and the first lawyer to step up to the Court’s lectern this week will be urging the Justices to do just that — to take a pass.  Although neither the challengers nor the federal government currently believes that the federal Anti-Injunction Act was a bar to the lawsuits, the lower courts took differing positions on that, and the Justices have agreed to sort it out, naming a Washington lawyer with no other part in the case to make the point.

The Court itself had taken differing positions on that, in rulings decades ago, but then switched and steadily reinforced the Act’s ban on lawsuits that threatened to stop the U.S. Treasury from collecting tax revenues.   If it should turn out that the Justices do apply the Act to the lawsuits against the mandate, the mandate would survive this test, and maybe $4 billion of tax revenue would still come in over coming years.

That would take away from this case much of its historic potential, because the constitutional issues surrounding the mandate are so momentous and yet would remain unsettled for now.  But such a ruling would be one of the most significant gestures the Court has made to protect the national Treasury in 50 years — an action that could rank constitutionally with the ratification of the Sixteenth Amendment in 1913.  It would be a strong message to lower courts to keep the courthouse doors closed to attempts to block federal legislation that is designed, at least in part, to produce revenue for the government’s coffers.   But the practical effect, for the mandate, would be that it could not be challenged until after it had actually gone into effect — in 2014 — and was then enforced by the government.

There would be a political effect, too: the mandate’s future would remain an issue in this year’s congressional and presidential campaigns, and the outcome of the national election on November 6 could either doom the mandate to a repeal effort, or save it, at least until it went into effect.   The issue of its constitutionality might not return to the Court until 2015 at the earliest.

However, when Monday’s argument winds up, close to noon, the nation — and even the Court — will not yet know whether the mandate’s fate is going to be decided.  The Court will move on to Tuesday, to explore the mandate itself as if its validity were going to be settled.  And that is the argument in which the biggest parade of history will march across the courtroom.

The federal government gets to open the argument that day, and its top Supreme Court advocate will seek to persuade the Court that history is on the government’s side, that health care is in a crisis of national proportions, that Congress must have the authority to rise to such occasions, and that this controversy calls for judicial modesty.   For almost as long as there has been constitutional history, that attorney seems sure to argue, economic crises too big for the states to handle have been left to Congress.  If Congress was constitutionally disabled from enacting this law, it will have had to surrender core constitutional power, the Court may be told.

And then two lawyers for the challengers will take turns arguing that this case does not involve just another episode of familiar history, but rather that this is constitutional history starting over.  Congress, they will say, has never dared to so manage Americans’ private lives as it now has attempted, without precedent and without even a hint of authority from the Constitution.  If Congress can do this, there is no invasion of private choice that will not be constitutionally tolerable, the Justices almost certainly will be told.

Wednesday will be a double-header on constitutional history.  In the morning, the Court will return — as so often in the past — to the fundamental division of government authority between Congress and the courts — horizontal separation of powers that James Madison thought essential to individual liberty.  That will be at the center of the argument on what happens to the remainder of the new health care law if the individual mandate were to be struck down,.  And, in the afternoon, the Court will trace many of history’s earlier steps along the line that divides national and state power — the vertical separation that Thomas Jefferson thought essential to the sovereignty and dignity of governments closest to the people.  That will be the focus of the argument over the expansion of the Medicaid program for the poor, for the first time providing those benefits to millions of the working poor and to childless adults.

By week’s end, America will have witnessed — for most people, from afar, because only a couple of hundred seats are available for those who will see it actually happen — a deeply serious and probably quite revealing conversation about the Constitution and what it might mean 225 years after it was written.


Recommended Citation: Lyle Denniston, Essay: Taking its place in history…, SCOTUSblog (Mar. 25, 2012, 8:04 AM),