One week from today the U.S. Supreme Court will begin hearing oral arguments on the constitutionality of the Patient Protection and Affordable Care Act, including whether or not the law’s individual mandate requiring every American to buy or secure health insurance violates Congress’ power “to regulate commerce...among the several states.” Writing in today’s Los Angeles Times, David Savage makes a point about the case that’s similar to something I’ve been arguing for the past few years: Namely, the longstanding division between libertarian and conservative schools of legal thought is going to play a central role in the outcome of the health care challenge. Here’s Savage:
The [legal] issue also poses a dilemma for the court's conservative majority: Just what type of conservative are they? Do they seek to reimpose conservative principles on the two elected branches of government or do they hew to the idea of a limited, restrained role for the courts?
At The Huffington Post, Mike Sacks makes a parallel argument:
The battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate's challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century.
The idea that judges should defer to the will of lawmakers runs deep among conservative legal activists. Consider the June 2011 opinion by 6th Circuit Judge Jeffrey Sutton upholding the constitutionality of the individual mandate. Nobody’s idea of a liberal, Sutton is a former clerk to Justice Antonin Scalia and a very well-respected figure in Federalist Society circles. And in Sutton’s view, opponents of Obama’s health care overhaul should be taking their complaints to the ballot box, not to the court house. “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” Sutton wrote, “allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”
Now contrast those words with the 11th Circuit’s August 2011 decision striking down the individual mandate. As that court declared, “When Congress oversteps [the Commerce Clause’s] outer limits, the Constitution requires judicial engagement, not judicial abdication.” That’s the libertarian-conservative legal divide in a nutshell: judicial engagement vs. judicial deference. The fate of the individual mandate depends on which side of that divide holds sway over the Supreme Court’s conservative bloc.