Courts should not doubt Congress

The Affordable Care Act faced the latest challenge in the Supreme Court this month, as opponents led by the state of Texas argued that Congress tanked the entire law three years ago when it had eliminated the penalty associated with the individual mandate to obtain health insurance.

A majority of the justices rightly seemed skeptical of this stance. It would be odd to conclude that Congress tried to undo the law when it removed the penalty or, in other words, that it intended to do away with the whole statute by altering a sole provision. Absent clear evidence that Congress intended such a result, courts will usually allow the invalidated provision to be severed from the rest of the law. As Justice Brett Kavanaugh said at oral arguments, this is a case for severability with the precedent.

The real issue is how we came to a place where a profound piece of social legislation continues to be subject to second guesses from the judiciary. It is simple to assign blame to conservative politicians and attorneys general opposed to any broader federal programs. But at least some of this blame should be reserved for Chief Justice John Roberts. In the first case around the legality over the Affordable Care Act, which was National Federation of Independent Business versus Kathleen Sebelius, Roberts paved the way to both challenges to the law and the ability of Congress to govern.

In the aforementioned case, Roberts upheld the Affordable Care Act. He concluded that the individual mandate, which forced people to purchase health insurance or pay the penalty, was not a valid exercise of legislative power to regulate interstate commerce. He reasoned, however, that such penalty could be viewed as a valid tax. Both then and today, that case for the mandate as a tax is thin, as noted by Justice Amy Coney Barrett for a review article before her confirmation that criticized the decision.

At the same time, Roberts led a different coalition of justices to hold that the mandate exceeded the commerce authority of Congress. This action signaled that some justices were willing to add some limits on legislative power to regulate economic matters in the national interest, and it sent a narrative around the extent to which some justices could be willing to let the courts enforce those judicial limits on the legislative branch.

Such limits over the commerce authority of Congress run counter to the principle that unelected judges should defer to the legislative branch on how best to regulate economic activity which has a substantial effect on interstate commerce. Pursuant to this precedent, the individual mandate should have been declared constitutional under the commerce authority. But Roberts dismissed the precedent on the unclear distinction between economic activity and economic inactivity, as if the refusal to pay for any health insurance was not in itself an affirmative individual move.

Deference toward the economic policies of Congress finds support in the opinions of the great Chief Justice John Marshall. He understood how the framing generation envisioned the future relationship between Congress and the courts where the regulation of commerce is concerned. After all, he led the ratification effort in Virginia. In the first case on the dimensions of the commerce authority granted to Congress, Thomas Gibbons versus Aaron Ogden, Marshall held just one enforceable limit that no regulation of commerce could infringe another section of the Constitution.

Marshall noted that the critical check on use of the commerce authority by Congress would be democracy itself in what he would refer to as “the wisdom and the discretion of Congress, its identity with the people, and the influence which its constituents possess at elections.” These are the restraints, Marshall said, that people must rely on in a democracy.

Once upon a time, the notion of democracy as a check on the excesses of Congress was the hallmark of judicial conservatism at the Supreme Court. Thanks to decisions like in the case of Sebelius, where justices are willing to police the results of the legislative process, the current Supreme Court has found itself at the center of a number of disputes about the power of Congress. It could be better for both democracy and the judiciary if such disputes were resolved at the ballot box instead of on the bench.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”