The Affordable Care Act has done very well in court so far; three of the four courts of appeals to consider it have upheld the law. Moreover, there is every reason why it should be doing well. As conservative Judge Laurence Siliberman recently explained, the legal case against health reform “cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent.”
Nevertheless, a handful of judges have ignored the clear and unambiguous command of the Constitution and struck the law down. This minority view among judges is largely rooted in a misguided concern that, should the Affordable Care Act be upheld, it would somehow mean that there would be nothing else left that Congress cannot do. If Congress can require you to carry health insurance, the argument goes, why can’t they force you to eat broccoli?
This is not a very good argument. As ThinkProgress has explained, Congress cannot do lots of things. Broadly speaking, the Constitution gives the federal government sweeping authority to regulate economic matters — like the national health care market — but Congress has far less authority over non-economic matters. For this reason, federal murder laws, assault laws, laws regulating sexual morality or many laws regulating the family are all unconstitutional, but the Affordable Care Act fits clearly within Congress’ constitutional authority.
Nevertheless, to the extent that judges have fallen for the “if Congress can do this, they can do anything” argument, part of that is because the Justice Department has at times been reluctant to state clearly and explicitly what the limits of federal power are. There’s a good reason for this — if DOJ concedes that a hypothetical law is unconstitutional today, Congress could pass that law tomorrow, and then DOJ will be stuck defending a law they’ve already conceded to be unconstitutional. Nevertheless, a few judges have misread DOJ’s reluctance as a concession that there are not meaningful limits on Congress’ power if the ACA is upheld.
Today, however, DOJ filed its brief defending the Affordable Care Act’s insurance coverage requirement, and with one sentence the Justice Department takes the plaintiff’s silliest and most successful argument off the table:
[T]he minimum coverage provision is justified on the basis of a constitutional analysis that poses no risk of “convert[ing] congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Respondents “have not argued that health care and health insurance are uniquely state concerns, and decades of established federal legislation in these areas suggest the contrary.” Indeed, respondents do not contest that Congress has the authority to enact the Act’s comprehensive regulatory scheme; nor do they question the undeniably pervasive federal role in providing and regulating the methods of health care financing. They have also conceded that Congress could constitutionally achieve the end that the minimum coverage provision seeks to achieve through the (more coercive) means of prohibiting individuals without insurance from obtaining health care. Given those concessions, respondents cannot plausibly contend that the minimum coverage provision “upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power,” or that it trenches upon areas such as family law, general criminal law, or education, “where States historically have been sovereign.”
This statement, that federal efforts to directly regulate the family, general crimes or education stand on much weaker constitutional footing than the ACA, is a very big deal. It shows that DOJ recognizes the only thing that even vaguely resembles a hole in their previous legal arguments, and that they have now sewn that hole up. When one of the justices asks them “if Congress can do this, what can it not do?” they will now have a clear and well-articulated answer.
With just one sentence in its brief, DOJ took away the last few straws the ACA’s opponents were desperately grasping at.