the left and the right, seems relatively sanguine about the prospect that the Court will declare the Act unconstitutional. The left hopes that if the Supreme Court decides that Congress has no power to involve private companies as a means of achieving some form of universal coverage, Congress will be forced to enact a single payer system as the only viable and constitutional health care solution. The right hopes that if the Supreme Court throws out the Affordable Care Act, that will allow Congress time to adopt more incremental, market-based reforms less disruptive to the status quo.
Both sides should be more worried that the other side's predictions might be correct. Throwing out this statute might just set back reform for a few decades, or it might also lead to more drastic reform. Nobody can say for sure. And whatever constitutional doctrine emerges from deciding this issue is also going to affect other issues in unpredictable ways. That is why those on either the right or left hoping that a thunderbolt from the Supreme Court will lead to their preferred solution, ought to consider that such a strategy might backfire big time, and that the Supreme Court is perhaps not best situated to resolve this issue at all. We the people can handle this ourselves.
The ACA is already one of the central issues in this important election year. If we want to get rid of it, we don't need the Supreme Court to do that for us. All people would have to do is vote Republican, and the Republicans can be expected to keep their promise to repeal the Act as soon as they take office in January of 2013. If on the other hand, we are smart enough to prefer to keep this reform in place for at least the next four years, all we need to do is re-elect President Obama, and enough Democrats in Congress to allow the Act to be implemented.
The whole idea that there is some urgency to Supreme Court resolution of the constitutionality of the Affordable Care Act reflects a lack of faith in ourselves, and an almost unseemly interference with the political process by the justices. It reflects a need to turn important political and constitutional questions over to a small group of wise old men and women, a process that is at odds with democratic values. The Supreme Court would do well to hesitate before jumping into that role, and restore to the people our own capacity to determine what our Constitution means. Traditionally, the Court has taken its time to reach some constitutional issues, allowing them to percolate for years in the lower courts before issuing a definitive ruling. The Court has also shied away in the past from resolving legal questions that could just as well be decided through the political process. The Supreme Court used to invoke the "political question" doctrine to avoid deciding some constitutional issues, on the ground that they lacked the standards necessary to adjudicate certain questions. That doctrine has fallen into disfavor, and probably doesn't apply in this case anyway. But the Court can still rely on the doctrine of judicial restraint, a doctrine conservatives used to say they favor, which would counsel them to defer to the political process and uphold this Act of Congress. The Court could also resort to the simple expedient of holding their decision until after the election, giving the people the chance to weigh in on this issue before they do..
We can respect the Court's power to overturn the will of Congress as unconstitutional while also expecting that power to be used sparingly. In fact, we are likely to have more respect for the Court's power if it is used sparingly. And while it is in the Court's power in the short run to decide, for example, how to interpret a phrase such as the one which gives Congress the power to regulate commerce, ultimately it is up to us, the people, to decide what the Constitution means in that regard. That is because we have the power to elect the people who appoint Supreme Court justices.
The Supreme Court is not the proper body to help us come up with the best system of regulating the health care market. They are not insurance experts. They are not experts in the delivery of medical services. People who want the Supreme Court to step in so as to achieve their preferred health care policy are looking to the wrong institution to do that. Because the Supreme Court does not wield a scalpel; it wields a meat ax. The Supreme Court cannot devise an optimum health insurance policy. All the Supreme Court can do, it if were to declare this statute unconstitutional, is alter our understanding of the constitutional powers of Congress to regulate commerce. If it were to take such a drastic step, that would have implications, as I outlined in a previous post, way beyond health care. While it's true that there are a sizable number of people opposed to the ACA who want the Court to do just that, my sense is that most people are not looking for a Constitutional re-structuring of Congress's taxing or regulation powers. People either think the law should stand pretty much as it is; or think it does not go far enough toward a universal, public solution; or would just like to tinker with it in one way or another. If those are the kinds of problems we have with health insurance reform, we have the power to fix those problems ourselves through the political process. That will be messy, but more likely to achieve a consensus of what the people want, than relying on nine Supreme Court justices to solve this problem for us.