This Sunday marked the 10th anniversary of a decision by five Supreme Court justices that handed the presidency of the United States to George W. Bush—the decision that exposed a legal system so complicated, contradictory, and shot through with fundamentally clashing political ideologies, that almost any controversial political question will generate plausible claims that a particular policy or course of action is prohibited by our laws.
So it was perhaps fitting that, on the day after Bush v. Gore’s 10th birthday, a federal judge ruled that a crucial provision of the most important piece of domestic legislation in several decades was unconstitutional. Henry H. Hudson ruled that the individual mandate provision of the Affordable Care Act—the part of the law that requires Americans to pay a tax if they fail to be covered by health insurance—goes beyond Congress’ power to regulate interstate commerce.
As a law professor, I’m expected (at least by my students) to declare whether Judge Hudson’s ruling is a correct interpretation of the Constitution’s commerce clause. The answer to that question is fairly simple: The decision is obviously correct if one interprets the commerce clause as Justices Scalia and Thomas do, and just as obviously incorrect if one interprets the commerce clause as Justices Ginsburg and Breyer do. These various interpretations have plenty of Supreme Court precedents to support them.
Of course this is a somewhat unsatisfactory answer, since what students want is not merely a prediction of how particular judges will decide an issue, but whether their particular decisions are correct “as a matter of law.” But in the end that question is quite meaningless: as both a practical and theoretical matter, at this stage in American legal history, the meaning of the Commerce Clause in particular, and the Constitution in general, is simply identical to the beliefs authoritative legal actors, such as Supreme Court justices, hold about that meaning.
Judge Hudson’s decision would essentially be a death sentence for the private medical insurance industry in America.
This is a deeply unsatisfactory conclusion for those who wish to separate law from politics. (Its only virtue may be that it happens to be true).
But to say that, at the level of Supreme Court constitutional decision making, law and politics are inseparable, is not to say that they are the same thing. Consider the practical political consequences of the kind of legal politics our system features. A crude version of the claim that “law is politics” would note Judge Hudson is a shareholder in a Republican consulting firm that fought vigorously against the health-care bill, that he has earned tens of thousands of dollars in dividends from this source, and that he issued his ruling out of crass financial interest.
This seems to me just as wrongheaded as the idea that Bush v. Gore was a “lawless” decision. Consider that, if it were to stand, Judge Hudson’s decision should, as my colleague Scott Lemieux points out, be considered a good thing by many if not most backers of the administration’s health-care reform efforts. This is because Judge Hudson’s decision, by ruling the individual mandate unconstitutional but leaving the rest of the Affordable Care Act intact, would, if it were to stand up on appeal, essentially be a death sentence for the private medical insurance industry in America.
After all, under the remaining provisions of the ACA, insurance companies would still be legally required to enroll applicants despite whatever pre-existing conditions the applicants might have—but they would no longer benefit from the crucial legislative quid pro quo that anyone who did not purchase insurance would be subject to a penalty in the form of a tax.
Of course it’s always possible that the Supreme Court would strike down the ACA as a whole. But given that even many of the biggest opponents of the law concede that its other provisions are constitutional, this seems extremely unlikely.
In other words, in this case, a political preference for a narrow reading of the Commerce Clause might well produce an outcome in regard to health-care politics that the fans of narrow readings of the Commerce Clause would certainly consider deplorable.
So while it remains true that, in America today, law is very much in a certain sense politics, it is a strange kind of politics: one that makes it difficult to ever condemn any decision of the Supreme Court—even Bush v. Gore—as lawless and purely political. Rather it would be more accurate to describe such outcomes as “impurely political”—with the emphasis on impurity.
Paul Campos is a professor of law at the University of Colorado at Boulder.