What If Anthony Kennedy Decides He Doesn’t Like The Affordable Care Act?

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Jonathan Bernstein asks:

How scared are you about the possibility that the Supreme Court will (1) knock out ACA, and (2) return to pre-New Deal interpretations of the powers of the federal government?

And, the big question: should that happen, what kinds of political consequences would you expect?

I think it’s important to be clear on what we’re talking about exactly. If for some reason Anthony Kennedy decides he wants to rule that the government can’t levy a tax on people who decline to obtain Affordable Care Act-compliant insurance plans then that needn’t actually be a big deal. The existing tax penalty for non-insurance is thought by many observers to be too low to really make the regulate/mandate/subsidize framework work so it’s likely that congress will need to revisit this point anyway. And if Justice Kennedy says congress can’t incentivize insurance purchasing through this channel, congress can instead raise taxes on everyone and then immediately return the tax in the form of a “health care voucher.” Nobody will be mandated to use the voucher on an ACA-compliant insurance plan, but as the voucher will be non-transferrable and generally worthless for any other purpose the incentive will be created.

In general, I’m not really sure what a “return to pre-New Deal interpretations of the powers of the federal government” would entail. I assume it would continue to permit wide congressional discretion in enacting tax and transfer programs (see, e.g., the history of Civil War pensions) and I think it’s generally possible to translate just about any proposed regulation into a form of tax-and-transfer scheme.

But I’m not sure that this kind of law-talk is the right way to understand the issue. Just as norms have evolved from a situation in which it normally requires 50 Senators to pass a bill and filibusters are extraordinary, it’s possible that we’ll shift from a situation in which the Supreme Court only rarely strikes down social policy legislation it doesn’t like on the merits to one in which only bills that at least five Justices support can become law. Insofar as Justice Kennedy’s hypothetical purpose in striking down ACA provisions would be to prevent the whole thing from working, it’d be easy enough for him to make that happen.