The recent ruling by the Sixth U.S. Circuit Court of Appeals upholding the Affordable Care Act’s mandate that all individuals purchase health insurance shows what happens when judges try to do constitutional law without actually judging.
Supporters of the law have made much of the fact that a conservative judge was in the majority. Whatever the merits of that judge’s analysis, it was not an example of judicial restraint properly understood. While restraint counsels against judges shaping the law to suit their own policy preferences, it must not supplant meaningful judicial review. Courts are responsible for enforcing constitutional limits on government power. The result when they abdicate that responsibility, as the Sixth Circuit did in upholding Obamacare, is the federal government we have today: spendthrift, unaccountable, and ever-expanding. A properly engaged judiciary would mean less government and a much brighter future for America.
The U.S. Constitution created a government of enumerated and thus limited powers. The point was to protect liberty by denying the federal government a roving charter to promote public welfare and leaving that power instead to the states or the people, as the Tenth Amendment makes clear. But that design was turned on its head during the New Deal by people who thought America should have a government of essentially limitless powers, which they obtained not by amending the Constitution but by inducing judges not to enforce it.
Article I of the Constitution lists the various powers assigned to Congress, such as raising an army and protecting intellectual property. Managing health care is not among them. Predictably, Congress claimed to derive that power from its usual catchall provision, the Commerce Clause. Thus, according to the two judges who voted to uphold the Affordable Care Act, the question is whether Congress had a “rational basis” to believe the failure of some individuals to purchase health insurance could have a significant economic effect on the national health-care market. If so, the majority reasoned, then Congress may address those effects by exercising its power to “regulate commerce among the several states.”
There are three key problems with this approach. First, the term “rational basis” — which the court invokes 16 times in its decision — is judge-made code for “blank check,” as the majority’s analysis makes abundantly clear. The Supreme Court has held that the government need not present any evidence in rational basis cases, and it is irrelevant why the law was actually passed or whether it was enacted for a truly public purpose. But that is very the antithesis of judging, which, unlike the rational-basis test, is deeply concerned with facts, evidence, and truth.
Second, it’s the wrong question to begin with. The proper question in this case is not whether a given law bears some “rational” connection to a power enumerated in the Constitution, but whether the law is consistent with a system of government in which the powers withheld from Congress were meant to be far more numerous than the powers conferred. And that is the glaring flaw at the heart of the Sixth Circuit’s decision upholding the Affordable Care Act: It reflects no appreciation for the bedrock principle that Congress’s powers are “few and defined” as compared with those reserved to the states and the people.
Finally, the health-care challenge presents courts with the opportunity to reconsider their misguided policy of reflexively deferring to Congress. While the Sixth Circuit majority notes that the 2,500-page Affordable Care Act was “hotly debated,” it was not by any stretch the result of a “deliberate judgment” by legislators who seriously considered both the constitutionality and the implications of the bill before voting on it. Indeed, so unseemly was the process of the bill’s enactment that it sparked public revulsion and an unprecedented wave of grassroots opposition that persists to this day. To grant the product of that process a virtually irrebuttable presumption of constitutionality on the premise that it reflects the considered judgment of a legislative body, as the Sixth Circuit explicitly does, is both unrealistic and hazardous to liberty.
Courts abetted America’s departure from the path of constitutionally limited government 75 years ago. Today, they can help guide us back to that path by affirming that the Constitution denies Congress more powers than it grants, including the power to micromanage individual decisions about health insurance. The greatest gift the framers gave us was limited government; but that gift is meaningless without judges who will understand and enforce it.
— Edwin Meese III is the Ronald Reagan Distinguished Fellow in Public Policy at the Heritage Foundation and a former U.S. Attorney General. Clark Neily is a senior attorney at the Institute for Justice.