I’m somewhat hesitant to write about the ACA (aka: the health care law, Obamacare, etc.), because: (1) it’s not something I know a whole lot about at the political level; (2) it’s something I know absolutely nothing about at the policy-details level; (3) it’s not a policy I feel very strongly about one way or another; (4) discussions of it very quickly drift into partisan and ideological fights; and (5) there’s a serious possibility of not saying anything new and/or interesting. So not an exacta, not a trifecta, not even a superfecta, but the rare quint-fecta of dangerous commentary waters!

This could get ugly. But let’s get it on.

I’m much more interested in the constitutionality of the ACA than I am in the actual policy. And not because I care all that much about the constitutionality of the ACA per se;  what I’m interested in is the effect that it will have on the future of congressional/federal power, as well as how it will fit into our understanding of the post-Lopez walkback from the psuedo-plenary commerce clause power of Congress that was more or less presumed at a practical level by the late 20th century.

Via a post by Jonathan Cohn this morning, comes Richard Primus’s theory that the Lopez decision will give the Supreme Court the room to declare the individual mandate constitutional:

As part of their socialization into the world of American constitutional law, lawyers learn the maxim that the federal government is one of limited and enumerated powers … [c]onstitutional law has tolerated tremendous expansions of federal power in practice, as the logic of modern life has directed. But it has proved easier to tolerate those expansions while continuing to pay homage to the maxim than to repudiate the maxim openly. A piece of our identity is invested in the maxim: articulating it reminds us of a part of who we are, or of a story in which we locate ourselves … Lopez was decided as it was partly because a majority of the Court felt that it could not uphold the Gun-Free School Zones Act and still utter the maxim. At oral argument in the case, the Solicitor General of the United States was asked to identify a law that the federal government could not make if the statute at issue were upheld. He could not provide an example.

…

That said, the maxim does not demand that the Supreme Court constantly strike down federal laws. It demands only evidence that it is taken seriously. Lopez and Morrison insulate the Court against charges of heresy on the point-not perfectly, but considerably more than would be the case had those decisions not been rendered. In later cases, the Court can uphold far-reaching exercises of the commerce power without laying itself as open to the claim that it has let the maxim come to nothing. When it upholds other federal statutes, the Court can identify concrete examples of laws that are beyond the commerce power, laws with respect to which it has exercised its solemn duty to police the boundaries of federal legislative power.So when it upholds other laws as within the commerce power, it can adduce evidence that it has not left the maxim empty.

This, to me, is a very-well stated description of what is actually on trial next week, and I think it is the crux of the issue with the ACA. It is fundamentally not a question of whether the individual mandate itself can be defended as Constitutional. Oh, there’s lots of debate on that, for sure. But the real issue has always been the one raised by Primus: if the commerce clause allows Congress to legislative the individual mandate, is there a hypothetical congressional Act that we can imagine that would not be constitutional? If there is not such a hypothetical law, must we then either accept that Congress does indeed possess plenary power and that the widely-held maxim of limited and enumerated powers is indeed dead and gone, or, if do not, then must we unwind the logic and accept that the individual mandate is not constitutional.

This is worth pondering, because from my point of view, at the heart of the debate over the individual mandate are two competing views of the Constitution, both of which can plausibly claim the mantle of “common sense.” The first point of view is the historical one: the text of the Constitution plainly limits the power of the federal government, and to read the document and decide otherwise is more or less absurd. To reject this premise out of hand is to willfully blind one’s self to even the most cursory analysis of the document. The competing point of view, of course, is the developmental one: over the course of 200+ years, the give and take of politics and court jurisprudence has unintentionally handed us what is more or less a common-law Constitution under which it is plainly recognized that the federal legislature is restrained only by specific textually prohibitions, and the will of the voters. Any other reading is absurd.

Now, the crazy part is not that these two competing views exist; the crazy part is that many people — including me — are instinctively drawn to both of them. This comes back to the common sense test. I’m not a huge fan of the ACA (based on what I know of it, which, again, is pretty chattering-class pedestrian), but I don’t find it the least bit unreasonable that the federal government would be allowed to regulate it. On the other hand, I don’t think the “broccoli test” — lampooned by many liberals as an absurd hypothetical — can be dismissed in one short stroke; I do not believe in a national legislature that has the ability to regulate all aspects of my private life down to what cereal I eat, held in check only by the will of the transient (super)majority. And I think that’s common sense, too.

And look, I’m not saying common sense is everything when it comes to SCOTUS decisions. But I think it matters. It matters to the justices — as the famous question asked of the government in Lopez indicates — and more importantly, I think it matters to the popular legitimacy of an upheld law. While the Court has never shied away from a decision simply because they went against common sense, many of the most popularly-detested decisions were hated precisely because they went against common sense. Dred being at the top of the list; it was just not a plausible understanding of America to implicitly or explicitly assert that the natural condition of all the territory in the United States was slavery, up until a state specifically prohibited it. Seventy years of common sense has said the opposite was true.

And so, to me, the chief job of the government next week at oral argument is going to be to find a way to square these two realms of common sense, that Congress can impose and enforce individual mandates on citizens to participate in private economic activity, but that there still exists a limitation on congressional power such that laws may be articulated that Congress cannot legally enact. To say that Congress never would enact such laws is not good enough. As with Lopez, I think the Court will not look fondly upon a government that meekly concedes no limitation on Congress. The alternative option, of course, is to proudly defend the plenary power of the national legislature under the commerce caluse. High risk, and incredibly unlikely. For no matter how much that has become the normative view of mainstream progressive thought, it woefully ignores the positive implications for the current Court.

Now, Primus and Cohn present a clever idea that threads the needle here and satisfies the common sense concerns. When Justice Scalia asks the government to identify a law that the federal government could not make if the individual mandate were upheld, the government will simply respond, “Lopez.” That is, even under the theory that the individual mandate is constitutional, the original 1990 Gun Free School Act would still be unconstitutional. And voila!, problem solved: we can uphold the individual mandate and continue to live in a world where the powers are Congress are, at some level, still not plenary. Not only will this be true at a factual level — Lopez, and the congressional limtis therein, will still be the law of the land — but more importantly, at a cognitive level. So long as the solicitor general can easily point out, and the Justices and the chattering class can easily take in, that there are still places Congress cannot go, we can all continue to sleep on the idea of an enumerated, limited federal government.

This is an interesting and important argument. But I’m not sure that it holds. It rests on the assumption that the Lopez decision will not be implicitly overruled by an upholding of the individual mandate. That’s certainly possible: the distinction at hand — and that was further articulated in Raich v. Gonzalez  — is that the Gun Free Schools Act simply had no connection to interstate commerce. Trying to link gun possession at schools to hypothetical increases in violence and then to hypothetical increases in insurance rates and thus the economy — as was one of the government’s principle arguments — was just a bridge too far. Fair enough. But read that last sentence again: in Lopez, the government specifically linked  gun possession to insurance costs. I don’t know if that sends chills down your spine, but it sure as hell should get you sitting up in your seat.

Because the very argument made in favor of the mandate now is that Congress has the power to regulate the health insurance market, and the individual mandate is legitimate simply as a  “necessary and proper” non-commerce means to an end that can plainly be regulated under the commerce clause. It’s a clean, straightforward argument. It’s the one Primus makes, and I think it’s the winning argument for the first half of the challenge facing the government. But it’s also potentially the fatal flaw in regard to the common sense problem. To wit: if the individual mandate is necessary and proper to the regulation of the health insurance market, what then stands in they way of the government barring possession of guns at schools as a means to regulate that same insurance market? Because while the Gun Free Schools Act didn’t pass the commerce clause test on its own, as a non-commerical component of a broad scheme regulating health insurance, it seems to fall directly into a Raich-esque sphere of legitimacy. At least plausibly.

In effect, it does not strike me as at all unrealistic to think that the upholding of the individual mandate is logically the death knell of Lopez. That is, if we are to accept the individual mandate, we are probably going to have to accept the dissenting view in Lopez, or something quite similar to it.  And if Lopez comes crumbling down, all of a sudden the solicitor general may once again be standing in front of the Court, trying but failing to articulate a limit on congressional power. Of course, I’m no lawyer, much less any sort of commerce clause legal expert. And sure, it’s a bit gimmicky to note that the government’s defense in Lopez articulated an insurance theory as the connection between gun possession and the economy. But that doesn’t make it any less real.

There are excellent policy arguments in favor of Congress regulating and providing for health insurance. And, as I have stated, it’s almost common sense that Congress should have the power to regulate and provide for health insurance more or less as they see fit. But as of yet, I have not seen an answer to the key meta-question at hand, which is “If we uphold this statute, what can Congress not do?” My guess is that a convincing response will be forthcoming if the law is upheld, since I can only assume that the Justices will not be able to uphold the law without articulating one. But I have not heard it  yet. And I do not think that Lopez gets you there.