{"id":1175,"date":"2012-04-03T21:43:56","date_gmt":"2012-04-04T01:43:56","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1175"},"modified":"2015-10-02T15:23:41","modified_gmt":"2015-10-02T15:23:41","slug":"striking-down-the-aca-would-be-a-judicial-power-grab","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/04\/03\/striking-down-the-aca-would-be-a-judicial-power-grab\/","title":{"rendered":"Striking Down the ACA Would be a Judicial Power Grab"},"content":{"rendered":"

By Billy Corriher<\/p>\n

<\/em>Supporters of the Affordable Care Act (ACA), the 2010 health care reform bill known to many as \u201cObamacare,\u201d are discouraged after last week\u2019s oral arguments at the Supreme Court. \u00a0The Justices\u2019 questioning of the Solicitor General and his responses to the justices did not\u00a0bode well<\/a>\u00a0for the Government. \u00a0The conservatives Justices seemed\u00a0skeptical<\/a>\u00a0that the individual health insurance mandate, the centerpiece of the ACA, is within Congressional power to regulate interstate commerce. \u00a0The Court has long taken a broad view of Federal authority over interstate commerce, and striking down the ACA would require a wholesale repudiation of those precedents.<\/p>\n

A\u00a01942 case<\/a>\u00a0forms the foundation of modern Commerce Clause jurisprudence. \u00a0In\u00a0Wickard<\/em>, the Court upheld Congress\u2019s power to limit the production of wheat for home consumption. \u00a0There, the Court discusses the scope of the nation\u2019s problem with wheat production. The Court concluded that the affect of one farmer\u2019s wheat on national demand for wheat may be trivial, but \u201ctaken together with that of many others similarly situated, [it] is far from trivial.\u201d \u00a0The Court overruled older cases that relied on strict legal formulations of Congress\u2019 authority in favor of a broader analysis. \u00a0The Court rejected the farmer\u2019s argument that Congress cannot force farmers to \u201cto buy what they could provide for themselves.\u201d\u00a0<\/em>\u00a0If a farmer\u2019s decision not to buy wheat can be regulated, why can\u2019t one\u2019s decision not to buy health insurance?\u00a0 Both of those decisions (not to buy something) could be\u00a0described as<\/a>\u00a0\u201cinactivity,\u201d but the Court still upheld the wheat regulation.
\n
\nIn so ruling, the\u00a0Wickard<\/em>\u00a0Court said:<\/p>\n

The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.\u00a0 Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do.<\/p>\n

I hope the Roberts Court takes a similarly humble and restrained approach. \u00a0Striking down the ACA could represent a trend of less deference to Congress.\u00a0 This Court is the first in decades without a former elected official, and narrowness of experience may be a factor. \u00a0The Court was criticized for its ruling, in\u00a0Citizens United<\/em>, that \u201cindependent\u201d corporate expenditures on elections \u201cdo not give rise to corruption or the appearance of corruption.\u201d\u00a0 These unelected judges think they understand political corruption better than Congress.\u00a0 We\u2019ll soon find out if they feel the same way about regulating the national market for health care.<\/p>\n

The Court could still uphold the ACA, as a tax or as a regulation of commerce.\u00a0 Justice Kennedy\u2019s questioning was harsh, but he is notoriously\u00a0unpredictable<\/a>. The harsh tone of the Justices\u2019 questions could reflect our political atmosphere or Congress\u2019 unpopularity.<\/p>\n

The conservatives Justices\u00a0presented<\/a>\u00a0a parade of horribles, the crazy things Congress could do if the ACA is allowed to stand. \u00a0Congress will never require Americans to buy broccoli, because it would be political suicide. \u00a0Some have also\u00a0noted<\/a>\u00a0that commerce in broccoli is not the same as the national healthcare market.<\/p>\n

During oral arguments, the courtroom\u00a0scoffed<\/a>\u00a0at the idea that Congress could quickly\u00a0 respond to the Court\u2019s decision.\u00a0 A decision throwing out the ACA would represent a broad assertion of judicial power, at the expense of Congress\u2019 power to address dire national problems. \u00a0Now, in the name of protecting individuals from health insurance, these unelected Justices could invalidate Congress\u2019 only far-reaching legislative\u00a0accomplishment in years. \u00a0That is judicial activism.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Billy Corriher Supporters of the Affordable Care Act (ACA), the 2010 health care reform bill known to many as […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false,"_members_access_role":[],"_members_access_error":""},"categories":[2],"tags":[],"class_list":["post-1175","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-iX","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1175","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1175"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1175\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1175"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1175"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1175"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}