Factors to consider (3/21/2012)

Here are a couple of reasons the Supreme Court may find the Affordable Health Care Act constitutional, writes David Adler.The constitutionality of the Affordable Health Care Act, scheduled for three days of oral argument before the Supreme Court next week, enjoys a notoriety rarely achieved by a statute. This legislation, disparaged by its opponents as Obamacare, has shadowed conversations and sparked controversies across the country.

The nation, it is safe to say, anxiously awaits a ruling from the court on what many observers consider the most important domestic policy issue in nearly a century. The principal issue is whether Congress exceeded its authority under the Commerce Clause when it enacted the health care law.

Predicting Supreme Court decisions is hardly a science. Across two centuries the court has often surprised the citizenry with its interpretations of the Constitution and its willingness to abandon its own precedents. While the court’s decision on the health care act is months away, there are two reasons why the justices may well uphold the statute.

First, if the court follows its own chief precedent in this area, it will uphold the measure. The principal ruling, announced in Wickard v. Filburn (1942), held that Congress possesses broad authority under the Commerce Clause to regulate an economic activity that has a “substantial effect” on interstate commerce.

In Filburn, the court upheld the Agricultural Adjustment Act of 1938, which imposed penalties for excess production. Roscoe Filburn, a farmer, received a wheat allotment of 11 acres for his 1941 crop, but sowed 23 acres, planning to use the extra crop for home consumption. He was penalized for excess production and brought suit against Secretary of Agriculture Claude Wickard.

The court, in an opinion written by Justice Robert H. Jackson, widely recognized as one of the most distinguished jurists in American history, upheld congressional power to impose the limits on production. The problem created by Filburn’s decision to grow extra wheat, the court reasoned, was one of “cumulative effect.”

The production of excess wheat had a “substantial effect” on the commerce of the United States and fell within the province of Congress to regulate. There can be no doubt that health care exercises a “substantial effect” on American commerce.

Second, two provisions in the law — that which permits parents to add their 26-year-old children to their health insurance coverage, and the section that prohibits health insurance companies from denying coverage for pre-existing conditions — bring tremendous relief to families and are, needless to say, extremely popular.

Why would that matter? The late Chief Justice William Rehnquist wrote in a book on the court that justices are sometimes influenced by popular opinion.

Would the court hold unconstitutional a statute that extends health care insurance to millions who might otherwise find it unattainable? Perhaps, but it’s a factor to consider.

Adler is the James A. McClure Professor and Director of the James A. and Louise McClure Center for Public Policy Research at the University of Idaho, where he teaches Constitutional Law in the College of Law. He has lectured nationally and internationally on the Constitution and the Presidency.