Private: The Tough Luck Constitution

by Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University Law School

Last spring, the Supreme Court came within one vote of taking health insurance away from over 30 million people, exposing a dangerous intellectual trend that, simply put, threatens to hurt you and your family. The near-success of the constitutional arguments against the Affordable Care Act is scary news, because those arguments silently rely on a philosophy at war with the most fundamental purpose of the Constitution: to empower the American people to solve their most pressing problems.

The ACA included an individual mandate to have insurance, because no other path to universal insurance was workable. Even Republicans had supported such a mandate for years. Universal health insurance logically means that everyone must have insurance. 

The litigation depended on a different ideal, which we can call Tough Luck Libertarianism: any obligation of healthy people to contribute to care for the sick is an intolerable imposition on liberty; if you get sick and can’t pay for care, that’s your tough luck.

The constitutional challenge was devised by conservative lawyers who had, for a long time, been eager to impose limits on Congressional power. They proposed a new and previously unheard-of constitutional rule:  the state can’t make you do things or buy things. It may regulate only those who engage in some self-initiated action.

This action/inaction distinction came advertised as a great bulwark of liberty. Actually, it was a crude bit of political opportunism. No one can live in the world without engaging in self-initiated actions all the time. This rule is not a serious constraint on government power. It allows Congress to act in every case in which the citizen has voluntarily taken some action. Most of us can’t realistically avoid having jobs and buying things, and it’s not much consolation to be told that I can avoid oppression if I live in the woods and eat berries. This limitation is unlikely to have any application after the ACA litigation, and is patently tailored to bring about a desired result in a single case.

Why did the argument gain such traction so quickly? The Republicans had united against the ACA, it was likely that they were going to lose in Congress, and so the idea that they could refight that battle in the courts was mighty attractive. If a starving man opens a can of stew with a sledgehammer, that doesn’t prove that the hammer is a good can opener. It just shows that the man was desperate.

The first, underdeveloped statement of the constitutional objection, which at least tried to take account of the broad powers that Congress had possessed for decades, was published on Dec. 9, 2009. Exactly two weeks later, it became the Republican Party line. On Dec. 23, just before the Senate passed the bill, every Republican (including ten Senators who had previously sponsored or co-sponsored legislation containing an individual mandate) voted to support a point of order against the ACA on the ground that it exceeded Congress’s commerce power. (Congressional Record, Dec. 23, 2009, at S13830-31; Brief of Health Care Policy Scholars as Amici Curiae in support of Petitioners, NFIB v. Sebelius, at 32 n.6.)

The real moral force behind the objection wasn’t any technical legal argument. It was most clearly stated at the oral argument, by Justice Antonin Scalia. The counsel for the United States argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Scalia responded: “Well, don’t obligate yourself to that.” (Transcript of Oral Argument, Dept. of Health and Human Services v. Florida (No. 11-398), Supreme Court of the United States, Mar. 27, 2012, at 20.)

Scalia was saying, in effect, that there is no real obligation to care for sick people who cannot afford to pay for their own medical care; that any assumed “obligation” is really a discretionary choice. You can choose to obligate yourself or not.  But maybe you can’t choose.  Scalia ended up trying to trash the entire law.

Scalia is a decent person. He doesn’t really think that there’s no obligation to care for sick people.  So why was he saying this? The answer has to do with the structure of constitutional law.  Republicans preferred a different health care policy, and they believed that their alternatives – largely, forcing people to bear most of the cost of their own medical care, as Rep. Paul Ryan has urged – would deliver health care more efficiently. That preference however has no weight in constitutional argument.  It’s not a legal argument at all. So they were compelled to assert constitutional limits that would exist even if there were no other way to deliver medical care to everyone. They were committed, by the logic of their position, to a Constitution under which some problems could not be solved by anyone – not the states, not the federal government. They would have struck down the ACA even if it were the only way to achieve near-universal health care. 

This is why so many people (including, in the end, a near-majority of the Court) who were not Tough Luck Libertarians at all, who would find that philosophy repellent, nonetheless found themselves saying Tough Luck Libertarian things, and making claims based on a Tough Luck Constitution – a constitution in which there is no realistic path to universal health care.  That Constitution won’t be attractive unless Tough Luck Libertarianism is right that it is acceptable to deny people the medical care they need. The challengers to the ACA talked a lot about slippery slopes – at the bottom of this one was a law requiring you to buy broccoli – but there’s a slope in the other direction as well. Once you decide that it’s acceptable to hold your nose and make this kind of argument, it will be easier next time.

Constitutional Interpretation, Supreme Court