The last several days of Supreme Court arguments over health care have produced a kind of vertigo among legal analysts who are not associated with the conservative movement. The case against the Affordable Care Act rests upon stringing together selective use of precedent, wildly obtuse understanding of the facts of the issue, and bizarre hypotheticals. The Court has obviously not struck down the law, and it may well not do so, but the mere fact that the Supreme Court has so seriously entertained its convoluted premises itself suggests that something very weird and disturbing is going on.
The debate seems to have centered around a “limiting principle.” If you haven’t closely followed the arguments, here is what it means. The challengers have managed to wall off the health-care law from overwhelming precedent that would uphold it by defining the individual as something wholly different from other regulations — a regulation of “inactivity,” as opposed to “activity.” The distinction itself lacks any legal or even intellectual precedent. Having accepted a shaky series of premises, this has led the Court to settle on what it regards as the central issue of the case: If Congress can force you to purchase health insurance, why can’t it make you buy broccoli, or anything at all? (And since this would be bad, then obviously Congress can’t be allowed to make you buy health insurance.)
There are many possible ways to solve this objection, if a Justice were so inclined to look for them. Health insurance is inherently different from almost any other product, with inherent problems of cost-shifting and adverse selection. (The economics of this seem to be utterly eluding the conservative justices.) As former Reagan solicitor general Charles Fried argues, the absence of the mandate would have a major impact on already-existing interstate commerce, which cannot be said of broccoli consumption. Or, as Matt Steinglass offers, mandating the purchase of broccoli might be marginally helpful to the goal of containing health care costs — eating broccoli makes you slightly healthier — but it’s certainly not necessary, as an insurance mandate is.
But to even accept this as the central question at hand is to accept a very strange way of looking at the law. Certainly, the Court needs to be mindful of setting a dangerous precedent. But the Court does not habitually strike down any use of government power that could conceivably, when stretched to its maximal limit, have nasty results. As Akil Amar notes, if Congress can tax income it could tax income at 100% percent. If you can conscript 18-year-olds into the army, you can conscript them for 25-year terms like the Czars did. You could put them into the Army Corps of Engineers and turn them into a vast pool of government slave labor. But such hypothetical possibilities don’t normally dominate jurisprudence the way they have at the Court this week.
So why now, all of a sudden, is the Court so seized with the prospect that the government might fall into the hands of maniacs? Jonathan Bernstein has a pithy post noting that this is the triumph a completely ahistorical, Tea Party–driven analysis, which sees the Constitution as having been designed in large part to prevent regulation and the redistribution of wealth. A tiny handful of right-wing scholars have long argued for this, but it’s a minority conception. The interesting development is that it has quickly leapt from the fringe into the mainstream of conservative legal thought. Partially, this reflects simple partisan opportunism — conservative justices seizing an opportunity to use their power to intervene in a high-profile political battle.
But the deeper cause is that conservative elites — not just freaked out conservative activists listening to Glenn Beck — have been swept up in a broad economic panic. Ground Zero of this panic is Wall Street, whose unchecked sense of victimization has been well chronicled by Gabe Sherman and Alec MacGillis. David Frum noted a while ago that the leader of a conservative institution confided, “Our donors truly think the apocalypse has arrived.” To take an example closer at hand, Republican lobbyist Ed Rogers repeats a quote that I’ve seen floating around conservative circles for years, and repeating with increasing frequency in the Obama era:
“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.”
They, the masses, are using their political power to gang up on us and seize our wealth. Conservatives have come to see the majority's threatening ability to shape economic policy not merely as an impediment but as a dire existential threat. Such a fear drove the Court to strike down the income tax more than a century ago, in the face of clear precedent. The current conservative legal obsession with strange dystopian hypotheticals has little to do with a straightforward reading of the law and a great deal to do with the conservative psychology of the moment.
The Obama era has unleashed deep-rooted conservative fears of economic democracy. If you pay close attention to the commentary of the conservative justices this week, their incredulity at the health-care law itself is everywhere. They are concerned with the possibility that mob rule could produce tyrannically intrusive regulations with no rational basis because this is what they think is happening already.