A lot of liberals, of course, are upset about the possibility that the Supreme Court might toss out all or part of the Affordable Care Act (ACA). In part, that’s a reaction against a court that has moved away from a 70-year consensus on the meaning of the Constitution’s Commerce Clause. However, it also stems from the sense that the court’s majority, as revealed especially in Bush v. Gore, is nothing more than a bunch of partisan hacks.
A court that really believed in a pre-New Deal version of the Constitution could certainly knock out the ACA, but doing so would also put lots of very popular government programs in grave jeopardy. Since a majority of the court doesn’t really want to do that, its only consistent choice is to leave the ACA in place — and if it carves out some sort of “only if it’s a program passed by Barack Obama and a Nancy Pelosi Congress,” then the court is massively misbehaving.
However, we now have some pushback: an argument, basically, that it would be principled for the Court’s conservatives to act in an unprincipled way. Courtesy of Buzzfeed’s Ben Smith, a conservative lawyer argues (anonymously):
We aren’t being asked to radically revise the Commerce Clause and throw out seven decades of law, and we won’t. But we know the founders never intended the Commerce Clause to allow the Federal Government to regulate everything on the planet. So we are going to accept Randy Barnett’s basically spurious exception to that basically spurious idea, and throw out the Affordable Care Act on the grounds that the Commerce Clause regulates “activity” (which we don’t really believe), but not “inactivity” (because, why not draw the line somewhere?).
Note that Conor Friedersdorf made a very similar argument last week.
On the one hand, of course, this argument carries no weight in trying to persuade anyone who believes that Commerce Clause jurisprudence has been basically correct, thank you very much, of the validity of an “exception” decision in this case. But can it convince them that it’s ultimately a legitimate use of the court’s powers?
I don’t really think so, although one could at least argue that it’s less arbitrary than Bush v. Gore, in which the majority embraced for the purposes of the case a right that they disavowed in general. Here, conservatives would at least be moving in what, for them, would be the correct direction. But they would be doing so arbitrarily, by inventing a nonsense distinction (the “inactivity” thing). I’m not really convinced that’s all that much better.
By the way, this is why conservatives, and not liberals, needed a “limiting principle.” Liberals (and most of the judicial mainstream, I would guess) are just fine with the current reading of the Commerce Clause, and therefore have no problem with finding the individual mandate to be just fine. It’s conservatives, or at least some of them, who want to come up with some legitimate reason to toss out the ACA without having to toss out the New Deal.
The core problem here is that those who want a pre-New Deal reading of the Commerce Clause and the rest of the Constitution want to impose something that, in practical terms, would be highly unpopular, affecting laws such as the minimum wage.
There’s really no easy way to do what conservative judicial activists want to do. And that leaves them with options that are going to look, to most people, very arbitrary — a partisan application of implausible doctrines. If, that is, they go down that path.