Over at the New York Magazine Jonathan Chait is arguing that if the Supreme Court strikes down the Affordable Care Act due to the individual mandate, then we can’t count on single payer fixing the situation, because the Court would probably just make up a reason to strike down Medicare for All.
But here’s the bad news. A Supreme Court activist enough to strike down Obamacare would probably be activist to strike down single-payer, too. Whatever arguments the conservative justices have concocted to nullify an individual mandate, they can discover different ones to nullify a much more intrusive big-government system. This doesn’t mean we should give up on ever passing such a law. But it does require a different strategic calculation. Instead of the presidency, a House majority and 60 senators, you probably need the House, the presidency, 50 senators and five Supreme Court justices. In the long run, there will be more times when Democrats have five members of the Supreme Court than 60 senators. The Supreme Court will function as a kind of second Senate, an additional political veto point. (Again, all this is assuming the kind of Republican activism that would be entailed be striking down the whole law.)
I think Chait is greatly exaggerating how “activist” such a Supreme Court that would actually be.
As much as some of the law’s defenders want to pretend otherwise, the individual mandate is actually a new and novel expansion of federal power. Never before has the federal government mandated every American purchase a product under the Commerce Clause. Even the Obama administration argued that the federal government doesn’t have the blanket power to mandate purchases, but does in this case because of the uniqueness of the health insurance market. It was trying to prevent this mandate from setting such a precedent that made the oral arguments for government so difficult.
One can argue that the case against the individual mandate was weak and politically motivated, but there was at least a technical new power challenge. There was a real hook to exploit.
No such technical distinction would exist if Congress simply lowered the Medicare eligibility age and raised the payroll tax. For the Supreme Court to overturn Medicare for all would require them to completely abandon settled law and overturn a century of precedents.
I find it nearly impossible to ever think this Court would ever be that activist. Not only do I think a majority of the justices have enough personal integrity to reject such a naked power grab, but more importantly I think the Justices are smart enough to properly fear the ramifications for the Court from such move.
The Supreme Court has very little inherent democratic legitimacy. It’s legitimacy comes from it acting sparely and mostly with restraint. If the Court really did try something so blatant, it would run the real risk of being told by the President in Jacksonian style, “Roberts has made his decision, now let him enforce it.” A true raw power showdown would not end well for the Court, and they should know that.