The Supreme Court will hand down its decision in the Affordable Care Act case in a few days, and there’s lots of apocalyptic rhetoric from both sides about what a decision affirming or reversing might mean for the law and for the Supreme Court. I agree that the decision is likely to be hugely important. But I also think there are some reasons why the mandate decision may end up being less significant than many people think.
First, the challenge to the mandate has had an enormous impact even if the mandate is upheld. The political, rhetorical, and legal attacks on the mandate have caused a significant shift in how the legal culture on both sides of the aisle construes federalism issues. By the end of the Rehnquist Court in 2005, the Rehnquist federalism revolution was mostly dead. When Rehnquist and O’Connor departed and were replaced with Justices seemingly less committed to federalism than they, the prospect for any federalism revival at the Court seemed dim. I remember attending the oral argument in Comstock in January 2010 and being aghast at how uninterested in federalism the conservative Justices were. In just two years, opposing the mandate on constitutional grounds rooted in federalism principles has become the standard Republican position. This change has dramatically revived the right’s interest in limited federal power, and has signaled to the left that federalism concerns must be taken seriously. That reemergence of interest in federalism will continue whether the Court strikes down the ACA or upholds it.
Second, if the oral argument in the mandate case is a good guide, the Court may end up with a test that strongly discourages mandates whether or not this particular mandate is upheld. At oral argument, Justice Kennedy suggested that perhaps mandates should require some sort of special justification or heightened scrutiny to be allowed, with the big question then being whether the health care market regulated in this case satisfied that heightened scrutiny. If the Court ends up adopting a test like that, the Court will effectively blunt the possible future use of mandates even if the Court concludes that the health care market is unique and satisfies the heightened scrutiny. Given that the mandate has polled terribly, it’s not likely that Congress would be rushing to enact one in the future anyway. I suspect the polling numbers alone would persuade future Congresses that designing programs to use a mandate instead of the 1960s-style entitlement is a political loser. But even if the politics alone doesn’t end mandates, I suspect a higher degree of scrutiny for mandates would achieve that goal.
Third, we may end up in the same place over time in terms of health care laws no matter how the Court rules. If the Supreme Court upholds the Affordable Care Act, it seems reasonably likely that Congress will repeal parts of it over the next ten years (including the very unpopular mandate). If the Supreme Court strikes down only the mandate, the Court will bring us to a similar position. If the Court strikes down the entire law, it seems reasonably likely that some version of the Affordable Care Act (minus the unpopular mandate) will be enacted in the next ten years. And if we’re left with a law without mandates, it’s not clear if it will last over time or will prove ineffectual and be replaced by something else. It’s important to remember that the objection to the ACA is procedural in nature. The challenge is about how Congress can achieve its goal, not whether a national health care law can be enacted if people want one. So while striking down the entire mandate would restart the process on a health care law, there’s a sense in which all the roads may be leading to the same place over the long run.
Fourth, although there have been a lot of claims about how a decision in the mandate case might impact public perceptions of the Supreme Court, I tend to discount such claims. Public opinion about the Supreme Court seems to be relatively insensitive to individual decisions: Gallup’s poll suggests that the Court’s approval rating ranges from about 40% to 60% over the years. Changes in the ratings seem to coincide more with confirmation hearings (which in recent years have often correlated with a bump in approval ratings) than with particular decisions. That would make some sense, I suppose: Supreme Court confirmation hearings are major stories every day for at least ten weeks or so, while even major Supreme Court decisions are major stories only for a few days tops. Maybe the mandate case is so big that it would be different, but I’m not confident of that. So on balance I don’t think a ruling on the mandate is likely to make much difference one way or the other.
The mandate case is still hugely important, of course. The size and scale of the ACA is so vast that any case on its constitutionality will have major effects. The legislative process can be heavily path-dependent, so which path the Court takes may make a big difference even over time. The medicaid expansion issue from Day 3 is potentially a big sleeper issue that may have major impact, too. And importantly, part of my argument is premised on a particular view of how the Justices might craft the opinion (especially my point #2); if I end up being wrong on that, which is certainly possible, then it’s hard to predict how much impact the decision might have. But for the reasons above, I think there’s a decent possibility that the decision in the health care cases may have less impact than many are expecting.