Three days of oral argument over the Affordable Care Act at the Supreme Court made one thing clear: The Court doesn’t feel bound by existing doctrine and practices. If it did, as judges and scholars of many ideological hues have explained, the individual mandate’s constitutionality would hardly be a question. Instead, the Court may be ready to embark on a dramatic reconstruction of federal-state relations in favor of narrow reading of Congress’s power to regulate “inter-state commerce,” and, in particular, the use of that power to regulate that matters that are not “commerce” in the most banal and obvious sense.
Concerns about the health-care law are often framed in terms of liberty from government regulation. At Tuesday’s oral argument, for example, Justice Kennedy expressed a concern that the mandate “changes the relationship of the Federal Government to the individual in a very fundamental way.” Presumably, then, striking down the mandate would preserve an individual’s insulation from federal control.
Even if you accept Justice Kennedy’s concern—and we’ll get in a moment to why you might not want to do so—this argument doesn’t convince. In this case, the Court has been asked to contract the federal regulatory power to provide for a kind of social security; that is, against risks such as illness, poverty, and joblessness. But the very Justices who seem most eager to limit the government’s power in this domain have shown no inclination to check its national security powers—powers that pose more immediate risks of intrusions on individual liberty. The peculiar result of a decision invalidating the law would be a government barred from saving its citizens from catastrophic health crises, and yet perfectly able to track, surveil, and perhaps even detain them within only thin judicial review. Federal officials seeking to exercise regulatory power in the future would have a perverse incentive to garb their programs in the mantle of national security.
Such a lopsided constitutional constraint would not produce more freedom. It would instead result in a different distribution of freedom the day after the Court’s decision. It would foster a federal government empowered to provide a kind of security most valued by the well-off (who, after all, can’t get afford their own armies—yet), yet unable to provide meaningful security for the most disadvantaged from the threats of illness, poverty, and exploitation.
But it’s not clear that we should accept Justice Kennedy’s claim about the law’s effect on its face. That is, even if the short-term effect of invalidation would be to make federal social programs more difficult to enact, it may be that Congress’s power to regulate individual decisions in the same fashion as the individual mandate, without calling it that, may not be significantly diminished in the long term. Invalidating the mandate therefore would be less important for the durable limits it imposes on federal power, and more important for dealing a political blow inflicted on President Obama. If that is so, it is hard to see how invalidation can be defended as anything more than a partisan strike.