Thursday, June 21, 2012
Professor Jennifer Bard of Texas Tech University School of Law makes the point in an Op Ed written for the Houston Chronicle that "[w]hatever the opinion Supreme Court decides about the constitutionality of the Affordable Care Act (ACA), one thing is certain: it will not be based on an assessment of the merits of a national health care system." She goes on to explain that the Supreme Court's ruling on ACA
will be a ruling about whether there is explicit constitutional authority for the way Congress chose to fund a system to make health insurance affordable and accessible to all Americans. In other words, the decision is about how Congress chose to fund the system it set up, not the system itself.
There is no legal dispute, either in the written opinions of in any of the courts that have reviewed the bill so far, or among anyone else, that Congress has the power to spend the money it collects in any way it believes will promote the nation's best interests. Article 1, Section 8, Clause 1 of the U.S. Constitution gives a lawfully elected Congress the power to tax and spend the money collected in order to promote the "general welfare" of the country. Since then, the Supreme Court has interpreted this clause very broadly and granted Congress nearly unlimited discretion in deciding what does, and does not, promote the general welfare. The dispute here is about whether Congress acted within its authority in how it structured the finances of this law, not about the law's merits.
There would be no Supreme Court case if Congress had raised taxes and implemented a 100 percent federally funded national health care system. This is because the Constitution is explicit in granting Congress "spending power," and no individual citizen, or state, can make a legal challenge to how Congress spends its money. The remedy we have for Congress raising taxes and spending the money in ways we do not like is to vote them out of office.
Just as the court would not be able to review Congress' decision to fund health care had it done so by raising taxes, it could also not review a decision to fund college tuition or, for that matter, lawn care (which it does by making home mortgage interest deductible).
This matter is before the Supreme Court because rather than face the bad publicity of raising taxes, Congress chose a way to fund increased access to health care by making it impossible for free riders to take advantage of the system. The way the "mandate" works is to provide everyone with access to affordable health insurance, but allow no one to game the system by choosing not to pay for it while they were healthy and then taking advantage of the coverage when they got sick. Again, the Supreme Court isn't interested in whether or not preventing freeloading is a good idea. It's interested in whether Congress has the authority to solve a problem that is sapping our country's strength - lack of access to affordable health care - without raising taxes.
The money that people are spending on health care and on very expensive health insurance is money they are not spending on houses, cars, services or other goods necessary to get the economy going again.
No mistake, the legal issues about the extent of Congress' authority to raise money without raising taxes are very interesting ones that will keep many a law professor busy for the far foreseeable future. But to suggest, as many commentators and politicians have, that if the Supreme Court strikes down ACA it is because it has decided it won't work or because people don't like it is, at best, wrong. And to further state that this is a good thing because the Supreme Court is listening directly to the voice of the people is extremely worrisome. Congress, consisting of those folks we vote for to represent us in Washington, is the "voice of the people." The Supreme Court is the voice of the Constitution. And the court's job is to make sure that the federal government doesn't overstep its boundaries by taking on powers not authorized by the Constitution.
So whether the court issues an opinion that upholds the ACA in some form or that strikes it down completely, it's important to remember that this will be a decision based on "inside the Constitution" issues that are most often heard inside a law school classroom. The court's decision on the legality of the act will be based on how Congress chose to raise the money to pay for it - not on whether or not it was worth paying for. A decision striking down the act doesn't mean the Constitution prohibits the government from subsidizing or even paying completely for health care or that our current system of financing health care works, and a decision upholding it does not mean the Supreme Court thinks it will increase access to affordable care.