I think one of the more poignant talking points that’s been lost in the discussion over the Individual Mandate in the Affordable Care act is the degree of consensus in the legal academy regarding whether the law was constitutional. I’ve touched on this briefly in the past, but it bares a second look.
When the constitutional challenges to the Individual Mandate started, many folks in the legal academy took one look at the precedents and thought the smart money was on a 6-3, 7-2, or 8-1 decision upholding the mandate. That assumption was only challenged when it seemed like the conservative side of the bench was not enthusiastic about the Mandate. A recent poll from Bloomberg confirms the trend:
Bloomberg surveyed 21 top constitutional scholars and found that, while 19 think the individual mandate of the Affordable Care Act ought to be upheld on the basis of legal precedent, just eight think the Supreme Court will actually do so[.]
When the initial challenges to the Individual Mandate were issued, the majority consensus was that the mandate would be upheld on the basis of established case law. This consensus is represented elsewhere by, inter alia, an ABA journal survey of legal practitioners, academics and court watchers published earlier this year in which 85% of respondents believed the mandate would be upheld. Erwin Chemerinsky, Dean of U. Cal. Irvine School of law, who has written more legal treatises accidentally in his sleep than most lawyers will ever read, noted at the time:
Since 1936, not one federal law has been declared unconstitutional as exceeding the scope of Congress’s taxing and spending power and no spending program has ever been struck down because its conditions on the states are too onerous.
Christina Whitman, who teaches at U. Michigan school of law, notes at the first link above that “The precedent makes this a very easy case[.]” Jesse Choper, from U. Cal. at Berkely, noted that “It’s relatively straightforward — if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.” Elsewhere, Orin Kerr, who teaches at George Mason University and is a regular Volokh Conspiracy contributor (not exactly a crowd friendly to the ACA), said near the outset of the ACA litigation that ”there is a less than 1 percent chance that the courts will invalidate the individual mandate.” So that should give you an idea on where the legal consensus was at the outset of this litigation, even assuming the ideological leanings of the Court.
What will most define the healthcare ruling when it comes down is the Court’s decision to either adhere to precedent, or depart from it. A departure from precedent would of course be a textbook example of what often gets called “judicial activism.” But that is really just a term that people use when they don’t like the way a decision goes. Nonetheless, if one defines activism as wanton departure from legal precedent, the Roberts Court has been one of the most activist courts in history. Justice Stevens noted in his dissent in Citizens United:
[T]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL), McConnell v. FEC, 540 U. S. 93 (2003), FEC v. Beaumont, 539 U. S. 146 (2003), FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), NRWC, 459 U. S. 197, and California Medical Assn. v. FEC, 453 U. S. 182 (1981).
Whatever one thinks of the constitutionality of the ACA, there is no question that if it is overturned, it will be a decision based on public policy, and not stare decisis. To be sure, there’s nothing inherently wrong with that: courts make decisions based on policy all the time (virtually every legal practitioner has a laundry list of bad precedent that they think should be re-visted and overruled). But I suspect that the justices who vote to strike down the mandate will attempt to argue, as the majority did in Citizens United, that they are actually being faithful to the court’s precedents. Nothing could be further from the truth.
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