The law of unintended consequences should the Supreme Court strike down the ACA

Posted by AzBlueMeanie:

Ed Kilgore at the Politcal Animal blog has an excellent post on the law of unintended consequences should the U.S. Supreme Court strike down the Affordable Care Act on Commerce Clause grounds. American law is built upon judicial precedents, and to strike down the ACA on Commerce Clause grounds would undermine more than 70 years of Commerce Clause judicial precedents, and many legislative acts.

I would caution Mr. Kilgore that this is not a bug but a feature: Tea-Publicans want to repeal the 20th Century. Many of them long to go back to principles in the Articles of Confederation that would replace more than 200 years of Constitutional law principles. They are radicals, not conservatives ("tending or disposed to maintain existing views, conditions, or institutions" – Merriam-Webster Dictionary).

Ed Kilgore writes Commerce Clause Counter-Revolution:

If the individual health insurance purchasing mandate is declared unconstitutional, many conservatives will undoubtedly hail the decision as a heroic act that takes the nation back from the brink of a yawning abyss of federal tyranny, a nation where proud Americans are forced to eat broccoli.

[But] there’s another “floodgates” proposition that needs to be discussed: the possibility that unraveling ObamaCare could unravel decades of Supreme Court Commerce Clause decisions that undergird much of the contemporary landscape of domestic policy and civil rights protections.

This is the issue Michael Kinsley raises in a piece at Ten Miles Square. And it’s an issue no one should just brush away as scare-mongering.

Ever since Wickard v. Filburn (1942), with only a couple of minor exceptions, the courts have upheld the use of federal power under the Commerce Clause, which gives the federal government the authority to “regulate commerce.” Even the 1964 Civil Rights Act is considered constitutional as a regulation of commerce.

Now, maybe the court has been wrong all this time. Maybe the federal government’s authority under the Commerce Clause is much narrower. Maybe that authority doesn’t extend to requiring individual citizens to have health insurance or pay a fine. But if so, it is not only the future of Obamacare that will suddenly be shaky. Every piece of legislation for about the last 70 years that rested on the Commerce Clause will suddenly be up for grabs. This includes the Civil Rights Act. It includes laws protecting the environment and consumers.

Basically anything the government does that has ever been justified by the Commerce Clause will be open to challenge. For the sake of their own sanity and summer recesses, the justices ought to proceed cautiously.

I’ll offer a personal validation of Kinsley’s concerns. When I took Constitutional Law a few decades ago, we were taught (by the conservative Dean of a relatively conservative law school, the University of Georgia) that Commerce Clause jurisprudence had removed virtually any practical constitutional limitation on the power of the federal government to regulate economic and social activity (barring some violation of individual rights guaranteed elsewhere in the Constitution), on grounds that a modern economy made almost any activity you could imagine a part of interestate commerce. The key Court decision upholding the highly controversial public accomodations section of the Civil Rights Act of 1964 involved a small Birmingham barbecue joint. It was, the Court ruled, part of interstate commerce because it was located near a major highway.

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[L]et’s don’t pretend that invalidating the individual mandate would represent some sort of defensive reaction against a frightfully unprecedented constitutional doctrine offered to promote a frightfully unprecedented expansion of federal power. It would instead represent a judicial counter-revolution of potentially great scope—a counter-revolution at least as shocking as the sudden transformation of conservatives from being the inventors and strong supporters of an individual health insurance purchasing mandate to opponents shrieking about tyranny.

I am reminded of now Senator Rand Paul's exhaltation of "private property rights" of the business owner to discriminate against African-American customers if he so chooses in discussing the Civil Rights Act of 1964 during his 2010 campaign. This was an argument made by the "States' Rights" segregationists back in 1964, it was hardly new. As they say in law school, this could be the "slippery slope" — a relatively small first step that leads to a chain of related events culminating in some significant effect.