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Never Before—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on March 22, 2012.

Never Before
By Linda Greenhouse ’78 MSL

Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.

Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win. Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.

Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.

Maybe the court will agree with that assessment, and maybe it won’t. I think it will, by a wide margin, but that isn’t my point; the justices will do what they will do. Going into as dramatic a week at the Supreme Court as I can recall (the argument in Bush v. Gore was over in 90 minutes, compared with the six hours the justices have allocated to the Affordable Care Act), my concern is that the three-day marathon may leave people muddled and confused about something that is really quite simple and clear. So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times, by my count — I probably missed some — not counting such other formulations of the same thought as “novel” and “first ever.” O.K., I get it. I’ll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world’s most irrational health care system. It should have happened much earlier.

Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. Republican officeholders in all 26 states joined together in the case now known as United States Department of Health and Human Services v. State of Florida. In 22 of those states, the officeholder was the attorney general. In four states with Democratic attorneys general (Nevada, Wyoming, Idaho and Mississippi), Republican governors filed in their own names. If any of them noted any irony in the fact that not so long ago, the individual mandate was an idea cooked up by conservative policy wonks to counter more fundamental reform sought by the Clinton administration, they offer no sign.

The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (Erisa), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind. (From the perspective of today’s toxic politics, it’s a miracle that any of these laws actually got passed, but that’s a separate issue.) So there must be some problem with the Affordable Care Act other than “never before.”

As I said, the rhetoric is powerful: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious.” How so? “It is a revolution in the relationship between the central government and the governed.” In what respect? Beyond regulating commerce, a power explicitly granted to Congress by Article I of the Constitution, the Affordable Care Act gives Congress “the power to compel individuals to enter into commerce” – a “fundamental” distinction with “breathtaking” implications.

This is the argument that persuaded the two members of the three-judge panel of the Atlanta-based United States Court of Appeals for the 11th Circuit who voted to invalidate the mandate. The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

“No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk.” So said Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit in an opinion last summer that rejected a separate challenge to the law. Judge Sutton’s high visibility as a star among a younger generation of Republican-appointed federal judges made his opinion particularly notable. The government’s main brief quotes him at least six times, by my count.

Just like their opponents, the government lawyers are not above using repetition to hammer home their main points. The government brief repeatedly cites a 2005 Supreme Court decision, Gonzales v. Raich, which upheld Congress’s authority to criminalize the private, non-commercial cultivation of marijuana for medicinal purposes. Justice Antonin Scalia wrote a concurring opinion in that case.

Neither Chief Justice John G. Roberts Jr. nor Justice Samuel A. Alito Jr. was on the court then. But two years ago, they both voted with the majority in another case the government cites repeatedly, United States v. Comstock. That decision, a robust interpretation of Congress’s authority to pass legislation it deems “necessary and proper,” upheld a federal law imposing extended confinement on dangerous sexual predators who have completed their criminal sentences. (A fascinating article in USA Today this week shows that the law, once upheld, is scarcely being used.)

From reading the government’s brief, one might conclude that Raich and Comstock were the only two relevant cases in the constitutional firmament. But unlike the “unprecedented” mantra, these recent decisions really do shed light on the contemporary understanding of the scope of congressional authority. If the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

Indeed, just a few years ago, the constitutional argument against the mandate struck most people who thought about the matter as frivolous. In 2009, the House speaker, Nancy Pelosi, famously replied “Are you serious?” to a question about the bill’s constitutionality.

The opponents’ argument has been gussied up since then, which brings to mind Barack Obama’s remark during the 2008 campaign about putting lipstick on a pig. One of the more depressing news items I’ve seen lately was the report of a Bloomberg News national poll indicating that 75 percent of people expect that the Supreme Court’s health care decision will be influenced by the justices’ politics. Only 17 percent predicted that the case would be decided “solely on legal merits.” (This from a majority of poll respondents who said the law should be “left alone” or modified only slightly, presumably in the political arena.) Now it’s up to the court to prove them wrong.