Tuesday, July 3, 2012

Unintended Consequences

June 29, 2012

The following contribution to our post-decision symposium on the health care cases is written by Clark Neily. Clark joined the Institute for Justice as a senior attorney in
 2000. He litigates economic liberty, property rights, school choice, First Amendment and other constitutional cases in both federal and state courts.

Ocean liners do not turn on a dime. To change course, they must be steered gradually. The same is true of constitutional doctrines, such as federalism and the principle of enumerated powers. Whether that is an apt metaphor to describe what happened yesterday with the Affordable Care Act will not be known for some time. But it’s not too early to add a few things to what others have already said.

First, as litigators know very well, it is always more important what a court did than what it said. Courts deal in holdings, not rhetoric, and from that perspective the decision to uphold the key ACA’s key provisions, including the individual mandate (can we still call it that?), appears to have been a significant blow to the cause of limited government. Notwithstanding the majority’s assurances about the limits of federal power under the Commerce, Necessary and Proper, and Spending Clauses, the Court ratified what many perceive as the most significant expansion of federal power in 75 years. Whether those assurances will be treated as a holding of the case or mere dicta remains to be seen, and the fact that this particular exercise of federal power was, as Randy Barnett has emphasized, “unprecedented” would seem to sharply limit their scope either way.

Second, it is important to remember how unpopular the individual mandate remains with the public and the fact that the ACA was enacted along strictly partisan lines. Americans were assured that the better they understood the healthcare law and the more they learned about it, the more they would like it. Instead, the opposite appears to have happened. In that respect, there is a tremendous contrast between the ACA and the expansions of federal power (eventually) approved by the Supreme Court during the New Deal, including Social Security. In short, Americans came to accept the judicial decisions that upheld those programs because, on the whole, they liked the programs themselves and strongly supported the political philosophy that gave rise to them. This does not appear to be true of the healthcare law.

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