Political Ideology and Constitutional Decisionmaking: The Coming Example of the Affordable Care Act

Article excerpt

I

INTRODUCTION

On December 8, 2000, the Florida Supreme Court ordered the counting of all of the uncounted ballots in the Florida presidential election. (1) The Bush campaign made it clear that it would seek immediate Supreme Court review. I recall saying that night that everyone I knew who voted for Gore thought that the Florida Supreme Court was correct and that every ballot should be counted, but that everyone I knew who voted for Bush thought that the Florida Supreme Court was wrong and that there should be an end to the counting. I questioned whether it was likely, or even possible, that the Justices on the Supreme Court would see it any differently. This comment proved prescient.

I never have believed that Bush v. Gore (2) reflected the fact that five justices wanted Bush as President and that four wanted Gore in that role. Rather, I thought that it was much more about how a person's political orientation and ideology determines his or her positions and that this is generally no different for justices than for others in society. I remember thinking on December 8 that I expected that the five most conservative Justices would see the matter as other conservatives did and somehow find a way to write an opinion favoring Bush and ending the counting. That they did so in an opinion that makes little sense as a matter of constitutional doctrine further reinforced my sense that the outcome was a reflection of the larger political forces and how they influence the way in which people, including justices, see social issues.

As I think about the Supreme Court dealing with the constitutionality of the Patient Protection and Affordable Care Act (3) during the current term, this very much comes to mind. As a matter of constitutional law, under existing doctrines, it should be an easy case. The Act is clearly constitutional under the commerce power or under the taxing and spending power or as an exercise of authority under the Necessary and Proper Clause." But the outcome in the Supreme Court is very much in doubt because of the way in which the constitutional issue has come to be defined by political ideology. The Affordable Care Act passed the Senate on December 24, 2009, by a filibuster-proof majority of 60-39, with all Democrats and two Independents voting for, and all Republicans voting against. It passed the House of Representatives on March 21, 2010, by a vote of 219-212, with all 178 Republicans and 34 Democrats voting against the bill. In political debates since, the rhetoric has been defined entirely by ideology. In the lower federal courts, with only one exception on each side, every judge appointed by a Democratic President has voted to uphold the law and every judge appointed by a Republican President has voted to strike it down. (5)

The question is whether the Supreme Court will follow this pattern. If it does and if the Court strikes the law down, what will be the effects? Sometimes decisions on issues that seem the product of ideology have little effect on constitutional doctrines. Bush v. Gore, for example, had no apparent effect on constitutional law in that it has never been cited by the Supreme Court and has rarely been relied on by the lower federal courts; it really was a decision for that day only. But the positions taken on abortion have had a profound effect on constitutional law, as both supporters and opponents of abortion rights have developed entire theories of constitutional interpretation to justify their approaches, which in turn influence positions on other issues. If the Affordable Care Act is struck down, I believe the impact will not be easily cabined and many other federal laws could be put in jeopardy.

Part II of the paper explains why I believe that the individual mandate in the Affordable Care Act is clearly constitutional and should be an easy question for the Court to decide. Part III suggests that there are constitutional issues--and this may be one--where views, including of the Justices, are the product of the social construct of ideology far more than constitutional doctrine. …