So, it would seem to be a rather clear-cut constitutional case. Whether one likes the Affordable Care Act or not, it appears to fall well within the Constitution and historical precedents. By the way, that's also the view of Ronald Reagan's Solicitor General Charles Fried who said this in a March 28 interview:
"Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story."
However, if Chief Justice John Roberts and the Court's four other Republicans go in the direction they signaled during oral arguments and strike down the individual mandate, they will not merely be making minor clarifications to the noun "commerce" and the adjective "interstate" -- as the Court has done previously -- but they will be revising the definition of the verb "regulate" and thus substantially editing the Constitution.
Amendment Process
When it comes to editing the Constitution, there is a detailed process spelled out for how you do that. It's in Article 5 of the Constitution and it's called the amendment process -- something in which the Judicial Branch plays absolutely no role. The process for revising the founding document requires votes by two-thirds of both the House and the Senate and the approval of three-quarters of the states.
Besides representing an affront to the nation's constitutional system, an end-run by a narrow majority of the Supreme Court taking upon itself to rewrite an important section of the Constitution would drastically alter the balance among the three branches of government.
Such an action would fly in the face of the longstanding principle in constitutional cases that the Supreme Court should give deference to legislation passed by the government's Legislative Branch and signed into law by the President as chief of the Executive Branch. Under that tradition, the Judicial Branch starts with the assumption that the other two branches have acted constitutionally.
The burden of proof, therefore, should not be on the government to prove that the Constitution permits a law -- but rather on the plaintiffs to demonstrate how a law is unconstitutional.
Yet, during oral arguments this week, Republican justices pressed the government to prove that the Affordable Care Act was constitutional and even demanded that Solicitor General Donald B. Verrilli Jr. put forward a limiting principle to the Commerce Clause -- to speculate about what couldn't be done under that power.
Justice Anthony Kennedy several times raised the point that the individual mandate changes the relationship between citizens and the federal government in, as he put it, "fundamental ways" and thus the government needed to offer a powerful justification. In his questions, however, it was not entirely clear why Kennedy thought this, given the fact that Congress has previously enacted many mandates, including requirements to contribute money to Social Security and Medicare.
In the March 28 interview, former Solicitor General Fried took issue with Kennedy's question about this "fundamental" change, calling the line "an appalling piece of phony rhetoric" and dismissing it as "Kennedy's Tea Party-like argument."
Fried noted that Social Security in the 1930s and Medicare in the 1960s indeed were major changes in the relationship between the government and the citizenry -- "but this? This is simply a rounding out in a particular area of a relation between the citizen and the government that's been around for 70 years."
On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices' opposition to the law, saying: "I've never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don't get it."
A Noble Rationale
But Kennedy seemed to be fishing for some noble-sounding rationale for striking down the individual mandate. He was backed up by Justice Antonin Scalia who proffered the peculiar argument that if Congress could mandate the purchase of health care, why couldn't it require people to buy broccoli -- as if any outlandish hypothetical regarding congressional use of the Commerce Clause disqualifies all uses of the Commerce Clause.
This line of reasoning by the Republican justices also ignored the point that the Court's role is not to conjure up reasons to strike down a law, but rather to make a straightforward assessment of whether the individual mandate represents a regulation of interstate commerce and is thus constitutional.
In searching for a rationale to strike down the law, the Court's Republicans also ignored the true limiting principle of any act of Congress -- the ballot box. If any congressional majority were crazy enough to mandate the purchase of broccoli, the voters could throw that bunch out and vote in representatives who could then reverse the law.
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