Justice Ginsburg said the other day that the people who are speculating about what the Supreme Court will do with the health care law don't know, and those who know aren't talking. That hasn't stopped the speculators from talking, and the talking has only gotten more intense as the decision has become imminent. Most of this loose talk focuses on the political implications of the Court's upcoming decision, as well as the possible effects on the health care law itself. Similarly, the speculation about the imminent Court decision on the constitutionality of Arizona's attempt to regulate immigration law has also generated much talk about the decision's political implications, as well as the effects of similar immigration enforcement by other states. From the Supreme Court's perspective, hardly any of this talk concerns what these cases are actually about at all. Granted, the justices' feelings about the advisability of the Affordable Care Act, or about Arizona's immigration statute, can't help but influence their rulings to some extent. Still, the justices have to think beyond those concerns.
What the Arizona case is really
about, as far as the Supreme Court is concerned, is the scope of the pre-emption doctrine. To what extent do federal laws prevent the states from legislating in the same area? Traditionally, immigration has been viewed as exclusively the concern of the federal government. Even if the conservatives on the Court approve of what Arizona is doing,
they might not like it if other states start enacting stricter laws than
the federal government has imposed in other areas. (environmental
regulation for example) They have to think carefully about the
precedent they are setting about the scope of federal pre-emption.
The health care case
is mainly about the meaning of the Constitution's commerce clause,
meaning that it is about whether we want to go back to the era before
the 1930's, when the Court took a narrow view of the permissible areas of federal
regulation of commerce. Clearly some of the judges are not afraid to
turn the clock back, but others are going to hesitate before doing that. If
the Supreme Court overturns all or part of the ACA (and I still think that is a big
if), what will be of most importance to the future of our whole federal system will be whether they do it on narrow grounds that can be restricted to this particular statute, or
whether they will issue a broader ruling that changes the meaning of federalism that has been accepted over the past 75 years or so.
In other words, what
is at stake in these cases is nothing less than the relationship
between the federal and state governments. The question is whether the
federal government has the power to deal comprehensively with important issues like
immigration and health care. The larger question is the one that has preoccupied us since the time the Constitution was written. Do we want a strong central government, or do we want most of the power to be dispersed among the fifty state governments? Two great events in our history--the Civil War and the Great Depression--caused us to create a much stronger central government. Our dominant military power built up during the two world wars, and the Cold War, also contributed to the need for a strong central government. (When military interests come into play, the conservatives tend to favor a strong central government.) The Supreme Court is now considering whether to dismantle that consensus. Three radicals on the Court seem eager to do that. The four justices appointed by Democrats probably favor the constitutional status quo. It will be up to the other two (Kennedy and Roberts) to choose whether to follow the radical vision, to uphold the status quo by upholding the Affordable Care Act while striking down the Arizona statute, or to modify our understanding of our federal system in some large or small way.