I’m not sure I’m ready for today’s Supreme Court ruling on the Affordable Care Act–or, more precisely, for the howls and outrage that will arise from whichever side loses the individual mandate argument. I’ve been talking about it with my coffee buddies for the past few years. Most were–are–incredulous that there’s even a question about the ACA’s constitutionality. Of course the federal government can require everyone to buy health insurance! Health insurance is a good thing, like requiring people to wear seat belts, therefore the government can compel us to buy it! (One thing I’ve learned from teaching law for 15 years–most U.S. citizens have the faintest understanding of Federalism.) I believe the better arguments favor upholding it–I think the federal government can use its Commerce Clause powers to require us to buy health insurance because when we don’t buy health insurance we always shift our health care costs to third parties (hospitals, the government, people who do have health insurance), and thus the cumulative effect on interstate commerce of personal decisions not to buy health insurance is substantial–but I also believe there are legitimate, straight-faced arguments one can make against the law. (Not a popular position in the liberal circles I frequent or media I consume.)
Despite what pundits and Supreme Court justices say, decisions like this are not about applying objective rules, about “calling balls and strikes.” Indeed it’s to our national shame that Congress and the press didn’t call Chief Justice Roberts on this fallacious metaphor during his confirmation hearings. The strike zone is not objective. Umpires do not interpret it uniformly. The best baseball players can hope for is that the plate ump applies the strike zone consistently during a game. It is the job of Supreme Court justices to interpret and apply constitutional principles, which requires making policy decisions about the relationship between the government and the governed. That’s not being an activist judge; it’s being a Supreme Court judge. It’s inevitable that a justice’s political views will shape his or her interpretation of the Constitution. The best we can hope for is that a justice’s decisions are governed by consistent interpretation of constitutional principles, by stare decisis and profound respect for the Rule of Law, and by recognition that the Constitution was intended to be a living document (this rules out Justice Thomas.) There is tremendous tension between these three forces–which is why we lawyers say reasonable people can disagree. Unfortunately, when it comes to the national political discourse reasonable people have been hunted to extinction. I’m not eager for the nasty aftermath of the ACA decision, however it comes down.