Healthlawpalooza, Part 2: The Element of Surprise

By Mike Dorf

Today the Supreme Court hears oral arguments on the validity of the mandatory coverage provision (mcp) of the Affordable Care Act.  As I noted yesterday (in point 5), even if the Court were to strike down the mcp, it would be child's play for Congress to re-enact it in a slightly different form to accomplish the same purpose, and have the new version sustained.  Nonetheless, the political and policy stakes are very high because the Congress that enacted the ACA has changed enough since the 2010 midterm election that a judicial decision to invalidate the mcp would effectively be irreversible by Congress.  Thus, if one thinks, as I think and as many health economists think, that w/o the mcp, the ACA would be substantially less effective at getting healthy people into the insurance pool than it would be with the mcp, a decision by the Court invalidating the ACA would be a major policy blow.

Here I want to consider whether that should matter, and if so, in which direction.  To be clear about the question I am asking, let's suppose the following three propositions:

(1) The Court would be prepared to rule that if Congress had labeled the penalty for failure to comply with the mcp a "tax," the mcp would be valid;

(2) If the Congress that enacted the ACA in the first place were faced with the aftermath of a SCOTUS ruling invalidating the mcp, that Congress would have amended the ACA in short order to relabel the mcp non-compliance penalty a "tax";


(3) Since the 2010 midterms and for the foreseeable future, Congress will be either Republican-dominated or sufficiently divided (with 41 or more Republican Senators) that no legislation fixing or otherwise amending the ACA will be possible.

Whether or not you think all three of these propositions are true, please just assume them arguendo, because they help frame what strikes me as an important question: In these circumstances, should the Court be equally willing, more willing, or less willing to strike down the mcp on somewhat formalistic grounds than it would be if the Congress that enacted the ACA were still sitting?

The argument for equally willing is straightforward enough.  There is an obvious sense in which such considerations should be completely irrelevant.  The Justices' job is not to say whether the ACA is a good or bad idea, or whether a workaround of an invalidating decision would be a good or bad idea, but simply to make their best judgment about whether the Act falls within the powers of Congress, and let the chips fall where they may.

That's the official story, certainly, but as legal realists have been noting for over a century, where there is at least some wiggle room in the law, we expect judges to be influenced by matters outside the formal legal materials and tests. Moreover, the Court's own cases sometimes expressly consider such issues as its proper role and relationship to the political process.  For example, in establishing standards of judicial scrutiny and review for particular domains, the Court will consider whether the political process can be trusted to work fairly.  Indeed, the late John Hart Ely's account of judicial review--which remains extraordinarily influential--placed considerations of the fairness and inclusiveness of the political process at the heart of his account of judicial review.  It's thus fair to expect that at least implicitly, the Justices will give some consideration to the opportunities for the political process to respond to whatever the Court does.

So which way do the politics cut?  On the plaintiffs' side, I think one might say that the rise of the Tea Party in the 2010 midterms was fueled in part by popular opposition to the ACA, so the fact that the current Congress would not try to work around a decision invalidating the mcp just shows that such an invalidating decision would not be counter-majoritarian in any strong sense.  Arguably that fact should lead the Court to be willing to be less deferential to the ACA than it might otherwise be, but at the least, the plaintiffs would argue on this point, the Court should be willing to impose (retroactively) any formal rules it wants to impose, and if Congress can't get around those rules because of the changed politics, that's not the Court's fault.

Another way of putting the plaintiffs' perspective might be this:  Isn't it better--from the viewpoint of preserving space for democratic decision making--for the Court to announce formalistic doctrines that can be readily circumvented by political actors if they really want to, than for the Court to simply shut down all possible responses?  And if so, then you shouldn't complain if, when the Court sends an issue back to the political domain for a "second look," the legislature backs down.  Seen this way, the argument is a variant on what Judge Guido Calabresi (when a mere professor/dean) called a "constitutional remand."  His idea was that in certain cases the courts should provisionally invalidate a law, requiring the political branches to reaffirm it a second time if the legislature really wants the law.  Constitutionally motivated clear statement rules work much the same way.  And if it turns out that between the first enactment and the second look, the legislature's membership has changed, well, that's just the price of skating close to the constitutional line: Calabresian second-lookism and clear statement rules are designed to get the political branches to reconsider, and that's going to take time, during which elections will happen.

That's all fair enough, I think, but I'm still highly dubious of the approach here.  Why?  Because Calabresi's second-look, or clear-statement rules for laws that approach the edge of constitutional authority, are designed to protect some underlying constitutional value, whereas the principle sought by the plaintiffs--Congress cannot regulate inactivity--appears to be formalism for formalism's sake.  The Court, if it were to hold that Congress can impose the mcp as a properly labeled tax but not as a "mandate," would not be saying that the tax version would be close to the edge but allowed because Congress had insisted on it; the Court would be saying that the properly labeled tax version would be within the core of Congressional power.  So what's the point of the formal rule?

Relatedly, there is an element of unfair surprise that attends the judicial adoption of any interpretive rule designed to affect Congressional behavior.  It's one thing to strike down or narrowly interpret a law that fails to clearly state some proposition that the Court has itself previously said must be clearly stated.  But when the Court invalidates or narrowly construes a law because it lacks a clear statement that the Court is first requiring in that very case, the Court treats Congress rather arbitrarily.  Thus, here, for the Court to first invent a prohibition on regulating "inactivity" after Congress has regulated what the Court deems inactivity has an element of unfairness.

To be clear, I'm not saying the Court should never do this sort of thing.  Case-or-controversy norms will often make it difficult for the Court to give Congress advance warning of some new doctrinal rule that, if known in advance, would affect the form of legislation.  But at least the Court ought to have a very good reason for the underlying prohibition and, as I have said, the prohibition on regulating inactivity strikes me as either formalism for formalism's sake or libertarianism masquerading as federalism.