High Court To Review Constitutionality of Affordable Care Act
By Ian Millhiser. This article was published by the Center for American Progress
Now that the Supreme Court has agreed to take up this case later this
year, Silberman’s words are a stern reminder that the text of the
Constitution must guide judges’ decisions, especially in politically
charged cases, and that Silberman’s fellow conservatives on the Supreme
Court must ignore the temptation to place politics over fidelity to the
Constitution by striking down the Affordable Care Act.
There can be no question that Silberman is right about what the
Constitution has to say about this law. The federal government’s power
is not unlimited—the Constitution gives Congress a laundry list of
“enumerated powers,” and Congress cannot stray beyond this list—but its
authority is quite sweeping when it regulates nationwide commercial
markets such as the market for health care services. In the
Constitution’s words, Congress may “regulate commerce . . . among the
The plaintiffs’ primary challenge to the Affordable Care Act is to
the provision requiring most Americans to either carry health insurance
or pay slightly more income taxes. In their vision of the Constitution,
this provision runs afoul of some unwritten rule against being told
what to do. The federal government can regulate how people go about the
business they are already engaged in, under this narrow vision, but it
is utterly powerless to push people to engage in commerce they would
prefer to avoid.
There are many, many problems with this theory of the Constitution.
But Silberman’s rebuttal of it is both the most simple and the most
elegant response to the plaintiffs’ entirely fabricated legal theory.
The Constitution says nothing suggesting that people can immunize
themselves from the law simply by remaining passive. It simply provides
that the United States may regulate commerce among the several states.
Modern judges do not need to speculate what the founding generation
understood these words to mean when they were written into the text of
the Constitution. Chief Justice John Marshall—himself one of the
ratifiers of the Constitution—told us what they mean in the 1824 case of
Gibbons v. Ogden. Marshall wrote that there is “no sort of
trade” that the words “regulate Commerce” do not apply to. He said that
the power to “regulate” something “implies in its nature full power
over the thing to be regulated.” And he told us that Congress’s power
to regulate commerce “among the several states” applies to all trade
that “concern[s] more states than one.”
So when Congress passes a nationwide law regulating the entire
national health care market, there is simply no question that the law is
constitutional. The law regulates a form of trade—trade for health
services—and it regulates a health services market that is both
pervasive and nationwide. The Affordable Care Act cases are some of the
easiest cases to cross the Supreme Court’s bench in a generation, and
it is nothing less than shocking that a handful of judges have struck
the law down.
Thankfully, the overwhelming majority of judges to review the law
have upheld it. Of the four federal appeals courts to consider the
Affordable Care Act, only one voted to strike it. That one outlier
decision was grounded on a false fear that if the courts were to uphold
health reform, it would somehow eliminate all of the existing limits on
congressional authority. If Congress is allowed to regulate health
care today, the law’s opponents argue, tomorrow they will force
everyone to buy broccoli.
Make no mistake: This concern is misguided, and it has no basis in the Supreme Court’s precedents. In its 1995 decision in United States v. Lopez,
the Supreme Court explained that the power to regulate “commerce”
includes sweeping authority over the nation’s economy, but Congress’s
authority over noneconomic matters is far more limited. Thus a wide
range of noneconomic regulation—including federal laws governing
personal and sexual morality or even a federal ban on assault, rape, or
murder—clearly exceed Congress’s enumerated powers. Sweeping regulation
of the national health care market, by contrast, fits comfortably
within the Constitution’s text.
Because the text of the Constitution clearly and obviously supports
the Affordable Care Act, the Supreme Court has an unambiguous duty to
uphold it. Judges are not like members of Congress. They are unelected,
and they serve for life. As such, they cannot be held accountable to
the people through fear of a lost election and can only be checked by
their loyalty to our written Constitution. If the federal judiciary has
the power to ignore the text of the Constitution then there is
literally nothing that they cannot do.
Indeed, if the justices strike down the Affordable Care Act, there is
nothing preventing them from forcing every American to buy broccoli.
Ian Millhiser is a Policy Analyst at American Progress and the Editor of the Center for American Progress Action Fund’s ThinkProgress Justice.