On Health Care: The Supreme Court and Subsidiarity (UPDATED)
By a narrow 5-4 majority, the Supreme Court today upheld the main provisions of the Affordable Care Act. The New York Times headline, “Health Law Stands” is likely to receive the bulk of the coverage. The decision hinged on Chief Justice John Roberts siding in part with the liberal justices. It is the “in part” that has enormous import.
Much of the debate on the bill hinged on whether the mandate for all to buy health insurance was constitutional. The Roberts opinion holds that it is… sort of. The chief argument in favor of the mandate was that the Federal government possessed this power under the broad power of “regulating interstate commerce.” Importantly, while the four liberal justices stated they would accept this interpretation, Roberts does not. Indeed, he states that such an interpretation would allow the Federal government to compel – rather than just regulate – commerce. So instead, Roberts maintains that the mandate is constitutional insofar as it is acceptable for the Federal government to exact a tax on individuals who do not buy health insurance. What is constitutional is the tax, not the mandate per se. Of course, what makes anything a mandate is that there is a punishment attached. The Roberts opinion makes it clear that the law per se does not “mandate” commercial activity – people are free to not buy insurance, and pay the tax.
I am no political reporter, but on these grounds, it will undoubtedly be very attractive for Republicans to seek to repeal the tax. But of more interest to CMTers should be Roberts’ lengthy discourse on the federal system. Roberts makes clear that he finds it perfectly acceptable for governments to mandate activity – just not the Federal government. He says:
Indeed, the Constitution did not initially include a Bill of Rights at least partly because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, “the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10. The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010).
The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments—as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government—punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” See, e.g., United States v. Morrison, 529 U. S. 598, 618–619 (2000). State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992) (internal quotation marks omitted). Because the police power is controlled by50 different States instead of one national sovereign, the facets of governing that touch on citizens’ daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293 (J. Madison). The independent power of the States also serves as a check on the power of the Federal Government: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10). This case concerns two powers that the Constitution does grant the Federal Government, but which must be read carefully to avoid creating a general federal authority akin to the police power.
Catholic debates over policy tend to ignore this line of argument. On this argument, it is perfectly acceptable for a given state to mandate commerce, and in fact to take many actions which may have large effects on daily life. Roberts makes it clear that anti-government libertarianism is not somehow enshrined in the Constitution, and similarly we should recognize that it is even less a feature of Catholic social teaching. On the other hand, it does suggest that progressive reform should proceed at the state level, above all. In the American context, this is very tricky – states are of greatly differing sizes, enactment of progressive policies can create destructive tax differentials and also unwanted migration, etc. But it does suggest that states are indeed “laboratories” for more active government.
UPDATE: Reading Justice Ginsburg’s lengthy and sometimes-scathing partial dissent, she confirms that the key issue is whether states can, in practice, proceed independently on this issue. She cites extensive evidence from state experiments in the 1990’s in requiring that insurers cover pre-existing conditions that such attempts are impossible without a mandate: insurers simply exit the market, because sick people can buy insurance only when they get sick. In doing so, she disputes a key premise of Chief Justice Roberts’ argument: that mandating the purchase of insurance would allow the mandating of the purchase of healthful foods (the “broccoli horror”). Insurance is simply a different kind of thing, on Ginsburg’s reasoning. Moreover, she affirms that, as with the Court’s ruling in favor of Social Security, a patchwork of different state laws would lead to the migration of the indigent to particular states, and therefore would likely deter states from enacting coverage laws. (That said, states could do exactly what Massachusetts did, which is mandate coverage and extend it, although she cites significant data that suggest Massachusetts has thereby been burdened by sick people from other jurisdictions.)
But she extends this logic to explain why health care in general is a different kind of thing: because Federal and state laws compel providers to give care, regardless of ability to pay. This is simply not true of other purchases (cars are the main example used by both). The requirement to provide care creates a unique situation, whereby all citizens have good reason to participate in the risk and cost-sharing involved in the practice of insuring.
Justice Ginsburg’s dissent nicely illuminates the complexity of subsidiarity. But its entire tone also indicates the fundamental difference in the jurisprudence of the Court. For Ginsburg, unlike for Roberts, one must actually look at and make a reasonable judgment about practicality. She assails Roberts’ attempt to defend the distinction between “regulating” and “compelling” commerce. In theory, Roberts’ argument is an elegant one. But in practice, Ginsburg explains the messiness. Perhaps the moral of the story will end up being that the ACA, in its attempt to provide nearly-universal coverage without the obvious solution (Medicare for all), is unworkable.