The Pernicious Politicization Of The Judiciary In The Face of Affordable Care Act Litigation

The computer that assigns judges to 4th Circuit cases today drew a panel of three Democrats to hear the appeal over the constitutionality of the Affordable Care Act, leading conservative reporter Philip Klein to immediately tweet that the bill’s constitutionality will be upheld.

And of course he’s right. But it tells you something about the nature of the litigation that this is all the information you need to know about the case. Lawyers are still going to go through the motions of arguing it, of course, but the Solicitor General could just toss off a randomly chosen quotation from The Federalist and he’d still win the case.

Of course politics is nothing new to constitutional law, but it’s worth noting that there’s a very particular kind of politics at play here. That’s because as best I know absolutely nobody denies that it would be constitutional for Congress to implement a larger tax increase than is contemplated by the Affordable Care Act and then offer “health insurance vouchers” for people to buy insurance on regulated exchanges. That would be the exact same policy as the individual mandate, but wouldn’t raise the pseudo-issue of “regulating inactivity” that conservatives are pretending to believe renders the ACA unconstitutional. This means that unlike it something like constitutional disputes over abortion or the regulation of pornography or the criminalization of sodomy we’re actually not witnessing an ideologically driven disagreement about the fundamental nature of individual liberty. What we’re witnessing is legislative gridlock. Everyone knows that the coalition behind the Affordable Care Act no longer has a majority in congress, while the coalition for repealing the Affordable Care Act also lacks a majority, so that even though it would be perfectly constitutional for congress to respond to an adverse judicial ruling by passing a slightly different version of the bill this won’t happen in practice because the votes aren’t there.

So while I’m not one to clutch my pearls at the revelation that there’s politics happening in my judicial branch, it’s worth noting that the particular kind of politics being practiced here is unusually lowbrow. It’s a kind of partisan intervention into an ongoing legislative debate.