The court battle over President Obama’s signature health-insurance reform law seems to be going his way. On Monday, the U.S. Supreme Court granted the administration’s request to hear challenges to the law and rule on them before July.
That order came just days after the U.S. Court of Appeals for the District of Columbia Circuit became the third federal appellate court to rule that the law’s individual mandate — requiring people to buy health insurance or else pay a penalty — was a valid exercise of Congress’ authority to regulate interstate commerce.
The decisive vote on the three-judge panel came from Senior Judge Laurence H. Silberman, a conservative’s conservative, who also wrote the opinion. Surely that bodes well for the law’s chances in the high court, which includes five members nominated by Republican presidents.
But any victory may be pyrrhic. The justices can declare a law constitutional. They can’t make it popular. And long after its backers assured us that the public would, eventually, warm to the measure, “Obamacare” remains unpopular.
A CNN/Opinion Research poll in June found the public split 56 percent to 39 percent against the statute. The least-liked provision in the measure is the individual mandate.
I’ve never understood the political argument for precipitating a Supreme Court ruling before the 2012 election, which is what the administration did by appealing the sole contrary appeals court ruling last August directly to the Supremes, instead of trying to get it reheard, which might have taken months.
Yes, it was responsible of the administration to try to eliminate legal uncertainty before 2014, when the mandate takes effect.
But if the Supreme Court upholds the law in the middle of next year’s election campaign, the likely political result is a backlash that will favor the Republicans. Nothing would more effectively inflame the GOP base, or assure that those voters turn out in November, than being told by the Supreme Court that Obamacare is here to stay unless the country elects a Republican Congress and president to repeal it.
A ruling against the law might inspire Democrats to turn out and vote against the court. But I doubt it; the protest would be futile because the law would be dead.
The rush to decide is also unwise on the constitutional merits. The question before the Supreme Court is whether Congress’ power to regulate the national marketplace implicitly includes the power to require citizens to buy a certain product. This is quite unprecedented.
Congress has imposed individual mandates pursuant to express constitutional powers — such as a military draft, pursuant to Congress’ power to raise armies. And it has enacted prohibitions pursuant to its implied power to regulate national commerce — as in the 1942 case, cited by Judge Silberman, in which the Supreme Court upheld controls on a subsistence farmer’s wheat crop.
But until the 2010 health-care law, Congress never enacted a mandate pursuant to an implied power.
Maybe this is not the license for liberty-crushing mischief that critics of the law believe. Maybe Congress would not abuse this power to, say, make everyone invest in a college savings account or buy healthy vegetables.
A reasonable person could worry about that, though, which is why it would be better for all concerned if the Supreme Court should not have to answer a question that the lone dissenter on the D. C. Circuit, Brett M. Kavanaugh, called “rife with significant and potentially unforeseen implications for the Nation and the Judiciary” — unless and until it’s absolutely necessary.
Kavanaugh’s wise and meticulous 65-page opinion showed that there is a statutory basis, under the 1867 Anti-Injunction Act, for the courts to dismiss these suits until the health care law goes into effect and some actual plaintiff faces the mandate.
In the meantime, Congress and the president, influenced by the vote in 2012, would be free to adapt or eliminate the law as they see fit. The political process could run its course.
Kavanaugh is not alone; Judge Diana Gribbon Motz of the Richmond-based U.S. Court of Appeals for the 4th Circuit also raised this issue. It’s a good sign that the Supreme Court’s order taking the case called for one hour of oral argument just on the Anti-Injunction Act. That means the justices are taking this question seriously and could determine that they don’t yet have jurisdiction to consider the constitutional issues.
Judicial restraint has many definitions. The courts that upheld the health-care law felt they should stand aside and grant acts of Congress a presumption of constitutionality. What we need now, however, is a different brand of restraint — the kind that says courts should not inject themselves into ferocious political controversies, especially when existing law gives them a reason to hesitate.
Charles Lane is a member of The Washington Post editorial page staff.