Will Social Security Privatization Save The Affordable Care Act?

The following report was filed from Washington, DC where the United States Court of Appeals for the District of Columbia Circuit just heard a challenge to the Affordable Care Act

The genius of the constitutional argument attacking the Affordable Care Act is that it has promised conservative judges an opportunity to make a surgical strike on the law that conservatives hate most — the so-called “individual mandate” requiring everyone to either carry health insurance or pay slightly more income taxes.

Two years ago, the law’s opponents offered a sweeping explanation of why they think this law violates the Constitution: “[t]he federal government does not have the power to regulate Americans simply because they are there.” The problem with this sweeping claim, however, is that it is simply not true. Congress may compel sex offenders to register with local officials after they move into a new jurisdiction. It may conscript unwilling civilians into military service. It may compel individuals to pay taxes. And it may require non-custodial parents to pay child support. President George Washington signed a law requiring freedmen of a certain age to buy firearms. The Civil Rights Act of 1964 requires lunch counter owners to sell food to African-Americans whether they want to or not. And Congress can force people to sell their land by flexing its power of eminent domain.

So the law’s opponents added an endless series of caveats to their original rule. Conscription is different because it’s not a financial transaction. Gun mandates are different because the Constitution allows Congress to “provide for calling forth the militia.” Eminent domain is different because — well, no one has every actually explained why eminent domain is different — but one federal judge claimed that it is “obviously distinguishable” and thus he does not have to give a reason.


This is an embarrassingly bad way to read the Constitution — judges should not be in the business of crafting customized rules that allow them to strike down one and exactly one provision of law — but it also had exactly one virtue. It allowed conservative judges to strike down the Affordable Care Act without thinking that they would also have to strike down something they actually care about.

That is, of course, until today.

Judge Brett Kavanaugh is a partisan’s partisan. He was a principal author of Clinton inquisitor Ken Starr’s report on the Monica Lewinsky affair. He served in George W. Bush’s White House. And, as he made clear during today’s oral argument, he is a passionate supporter of Social Security privatization.

On at least three or four separate occasions, Kavanaugh noted that if Congress cannot require people to buy health insurance in order to prevent a catastrophic collapse of the entire health insurance market, then it is probably also unconstitutional to repeal Social Security and replace it with a program that requires Americans to buy private annuities that will fund their retirement. (Under Kavanaugh’s theory, it would also be unconstitutional to enact the House GOP’s plan to privatize and then phase out Medicare for the exact same reason).

Based on Kavanaugh’s questions today, it appears very likely that he cares more about preserving Congress’ power to privatize Social Security than he does about undermining one of Barack Obama’s greatest accomplishments, and he appears to be a likely-but-not-certain vote to uphold the law. If a conservative former clerk to Justice Kennedy like Kavanaugh upholds the law, it is very, very difficult to imagine the the Supreme Court will not do the same.


To be sure, the Department of Justice did not have a completely smooth ride today. DOJ attorney Beth Brinkman outright botched an important and expected question from conservative Judge Laurence Silberman: if the Affordable Care Act is constitutional, can Congress force you to buy anything? Brinkman’s weak answer to this question is particularly unfortunate because there is a very easy answer to this question:

The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”

Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.

In this sense, health insurance is unique. The national market for vegetables will not collapse if there is no “broccoli mandate,” and no other federal law depends upon Congress requiring everyone to buy automobiles. Fortunately, the judges appeared to recognize that this is the correct answer to Silberman’s question even though Brinkman stumbled in her own answer. Indeed, Kavanaugh’s very first question to the attorney challenging the law focused on the necessary connection between the coverage requirement and the protections for people with pre-existing conditions.

The judges also spent a great deal of time worrying that a law called the Tax Anti-Injunction Act strips them of jurisdiction to hear the case. This was the rationale behind the Fourth Circuit’s recent Affordable Care Act decision, and it seems likely that one or more judges will be swayed by it. Should the court reach the merits, however, the ACA had a much better day today than anyone anticipated. Given the conservative makeup of this panel, a decision upholding the law on the merits would all but guarantee that the Supreme Court will uphold the law.