What Will Courts Do with the Individual Mandate?

Like Orin, were I forced to make a prediction, I would predict that the individual mandate will survive judicial review.  Federal courts have been quite reluctant to strike down federal statutes on enumerated powers grounds for quite some time, and the individual mandate is a larger and more consequential piece of legislation than those invalidated by the Rehnquist Court.  But while I think judicial rejection of the mandate is unlikely, I hardly think the chances are as remote as Orin suggests.

Recall the history of United States v. Lopez.  Academics and legal commentators were shocked when a panel of the U.S. Court of Appeals for the Fifth Circuit struck down the Gun-Free School Zones Act in 1993.  Reversal in the U.S. Supreme Court was a foregone conclusion.  No serious academic believed the decision would stand.  And yet, the Supreme Court confounded expectations and affirmed the Fifth Circuit, in part because the government was incapable of offering a theory upon which the statute could be upheld without obliterating what little was left of the limits on Congress’ commerce clause power.

Lopez did not change much in the lower courts.  Over he next five years there were many commerce clause challenges to federal statutes and yet only one appellate court, in one case, struck down a federal law for exceeding the scope of the commerce clause.  Federal appellate courts were completely uninterested in enforcing any limits on the Commerce Clause, largely because few took the Court’s Lopez decision all that seriously.  The one exception was the U.S. Court of Appeals for the Fourth Circuit, which struck down a provision of the Violence Againse Women Act.  That case went up to the Supreme Court and, in United States v. Morrison, the Court again confounded expectations and affirmed the lower court.  In both cases, the prevailing academic wisdom was that the commerce clause arguments had no chance, and yet in both cases the challenges prevailed.

The individual mandate is certainly a far more consequential provision than was at issue in either Lopez and Morrison. This would seem to reinforce the argument that the Court is likely to reject any legal challenges.  it is much easier for a court to invalidate a small piece of symbolic legislation than a major social reform.  And yet, the Court has, at times, been willing to cut wide swaths through the federal code or confront the political branches.  Dozens of statutory provisions were invalidated by INS v. Chadha, and the Court’s aggressive review of the poltiical branches’ wartime policy decisions in Boumediene were unprecedented, so it’s not as if the Court has not flexed its muscles in the recent past.

It is also worth speculating on the politics of the individual mandate by the time any legal challenges reach the Court.  If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far.  If recent polls are to be believed, a substantial majority of Americans oppose the health care reforms passed by Congress, and those who strongly oppose the reforms outnumber those who strongly support them by about two-to-one.  Striking down a popular health care provision would be a risky course for the Court.  But what if unhappiness with health care reform were to fester and grow?  What if the only thing preventing repeal were to be the same supermajority requirements that almost killed health care reform in the first place?  Were this the case, the Court would not be picking a fight with the political branches so much as it would be reaffirming the popular will.  In such a case, a Court decision against ObamaCare would not provoke howls of protest so much as sighs of relief.

In closing, let me also stress that the arguments against the individual mandate are anything but frivolous. For reasons I explained here, it would be difficult to strike down the mandate without limiting (if not overturning) the rationale of Gonzales v. Raich, but it would also be difficult to uphold the mandate without eviscerating what little is left of Lopez and Morrison.  And while it’s a relatively safe bet to predict the Court will reaffirm federal power if pressed, the Court has confounded such expectations before — and there’s a non-trivial chance it could do so again.