The Court Should Respect Democracy

If the Supreme Court strikes down any part of the health-care law this week, it will be committing a grave act of judicial overreach.

Republicans and other critics of the law contend that Congress overstepped its bounds when it passed the Patient Protection and Affordable Care Act, or Obamacare, in early 2010. The focus of their attacks has been the so-called individual mandate, which compels individuals to carry health insurance. The requirement, they argue, is beyond the scope of Congress’s powers since it regulates inactivity.

LaDawna Howard

Supporters of Obamacare rally outside the Supreme Court in Washington, D.C., on the second day of oral arguments, March 27, 2012.

A cursory review of the mandate and its intended aims reveals the absurdity of this argument.

Congress passed the Affordable Care Act to address a problem of national concern: the lack of health insurance and access to lifesaving medical care among wide swathes of the population. Although many question the wisdom of regulating the health-care sector, few doubt that, from a constitutional standpoint, an expansion of health-care coverage is a legitimate goal for Congress to pursue.

The question, then, is whether the means were appropriate. In tackling the health-care problem, Congress took a three-pronged approach.

First, Congress passed a package of regulations to ensure that insurance companies could no longer deny coverage — either directly or indirectly through price discrimination — to those who wish to purchase health insurance. Second, Congress provided subsidies to lower the cost of insurance to more affordable levels.

Neither of these first two provisions is in legal doubt. Health insurance falls squarely under the commerce clause, and the provision of subsidies is a rather banal exercise of Congress’s power to tax and spend for the common good. However, recognizing that this regulate-subsidize framework would likely suffer from the “free rider” problem, Congress also required individuals to purchase health insurance before getting sick.

This last prong, the individual mandate at the heart of the constitutional challenge, is necessary to prevent people from gaming the health-care system by delaying the purchase of insurance to the point of necessity. It is also essential to keeping healthy people in the risk pool who might otherwise prefer to forego insurance. In furthering each of these aims, the mandate lowers the average cost of insurance and is therefore directly related to the goals that Congress set out to achieve.

Given the close connection between the individual mandate and the constitutionally legitimate goal of expanding health insurance, the law’s challengers should have faced a difficult task convincing the Court to strike it down. Indeed, as recently as March, few legal experts thought the case had much chance of succeeding.

The reason for this is simple: the Supreme Court has traditionally held that Congress has broad powers to regulate interstate commerce. Although the Court has backtracked in recent decades, striking down laws which stretched the contours of the “indirect effect” argument first articulated in Wickard v. Filburn, there was little reason until oral arguments to think that the Court would void a law for which there was such a close connection between its commercial aims (lowering the cost of insurance and expanding coverage) and the means to achieve them (the mandate). Although some critics have tried to invent a fundamental right to inactivity — more accurately described as a right to free-loading — the Court thankfully did not take this argument seriously.

What the Court did take seriously, unfortunately, was the “slippery slope” argument. If Congress could compel people to purchase private health insurance, wondered the Court, what couldn’t it compel people to do? It was clear during oral arguments that many of the justices — Kennedy and Roberts especially — were searching for a “limiting principle” that would excuse Obamacare without granting carte blanche to the government.

The law’s supporters have offered a number of such limiting principles, many emphasizing the peculiar nature of the health insurance market. Contrary to what the more economically illiterate justices might contend, compelling the purchase of a product does not lower its cost in the overwhelming majority of cases; health insurance really is different in that regard.

However, these arguments, while correct, miss by far the most important and compelling limiting principle of all: democracy.

The justices worried that upholding the mandate would mean a government without limits, but that could not be further from the truth. The best check on government excess, whatever form it takes, is democratic accountability.

If, as many critics contend, the individual mandate proves onerous, the people have the ability to elect representatives who will repeal it. Indeed, the people have already elected a House that is hostile to Obamacare, and the Republican nominee for president, Mitt Romney, has pledged its repeal. If the mandate really is a threat to liberty, then the democratic process is already hard at work.

The only concern for the Court is whether the mandate attacks a right so fundamental, and so crucial to a liberal democratic society, that its fate cannot be left to the democratic process. It is difficult to see how the modest penalty fee for refusing to purchase insurance — for which there are no criminal consequences to not paying — constitutes such an immediate and grave threat to liberty.

Some on the right will doubtless contend hypocrisy on the part of liberals who now accuse the Court of judicial activism. After all, when George W. Bush was president, liberals pressed the Court to intervene on behalf of suspected terrorists detained at the naval base at Guantanamo Bay, Cuba.

This charge of hypocrisy, however, is baseless: unlike Guantanamo detainees, the American people can resort to both the public square and the polling booth to voice displeasure. It was appropriate for the Court to intervene in terrorism cases like Rasul, Hamdan, and Boumediene precisely because the defendants had no other recourse available to them. And the threat to the detainees’ personal liberty — a lifetime of detainment — was far more severe.

The Court has already come to a decision. Let’s hope it’s the one that respects democracy’s inherent ability to foster and protect freedom.

Alexander Hudson is co-founder and Editor-in-Chief of Partisans. He was previously a Fulbright Scholar to the United Kingdom, based at the University of Oxford. He is currently a Ph.D. candidate in chemistry at the University of California, Berkeley.