05.14.12

On Senate Floor, Leahy Shares Observations About SCOTUS Arguments On Affordable Care Act

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Supreme Court’s Review Of The Affordable Care Act
May 14, 2012

Full Statement, As Prepared

I was fortunate to be able to attend the argument before the United States Supreme Court on the constitutionality of the provision in the Affordable Care Act providing that individuals should take personal responsibility for paying for their health care by obtaining health insurance, or pay a fine.  There was a good deal of instant analysis from commentators after the argument, including their predictions for how the Court will rule.  I have not seen much devoted to the Chief Justice’s role. 

I saw a Chief Justice that day who I thought seemed well aware of the significance of this decision.  Chief Justice Roberts had not been appointed when the Court intervened in the presidential election of 2000, but he saw the reaction to that decision in Bush v. Gore, a 5-4 decision that the country viewed as partisan.  That decision was unprecedented.  In a shocking admission, the Court itself said that it should never be considered precedent or cited in the future.  That decision shook the confidence of the American people in the Supreme Court and, as Justice Stevens observed at the time, the loser in that decision was “the Nation’s confidence in the judge as an impartial guardian of the rule of law.”  That activism undermined the reputation of the Court as fair and impartial.

Chief Justice Roberts did participate in the Court’s recent 5-4 decision in Citizens United that divided along ideological lines and continues to engender significant backlash.  That decision was one in which the Supreme Court reached out to decide a matter not argued initially and in which it made a broad constitutional ruling that reversed nearly 100 years of progress in the country to control the corrupting influence of money in our elections and politics.  That decision led directly to the super PACs and campaign excesses that are now plaguing our democratic elections and this year’s Republican presidential primaries. It contributed to the further erosion of the public’s confidence in the Supreme Court.

The constitutional challenge to the Affordable Care Act is the current instance in which narrow ideology and partisanship are pressuring the Supreme Court to intervene where it should not, to override the law and constitutional legal understandings that have been settled since the Great Depression, and to overturn the actions of the people’s elected representatives in the Congress.  I was struck by how little respect some of the Justices showed to Congress, and of how dismissive they were of the months of work in hearings and Committee actions and debate of amendments and motions and points of order on the Senate and House floors before the measure was enacted. 

Their actions will not help restore Americans’ confidence in the Court to fairly apply the law. According a recent poll, half of all Americans expect the justices to decide the challenge to the Affordable Care Act mainly based on their “partisan political views,” while only 40 percent expect them to decide the case “on the basis of the law.”  That has contributed to the historically low percentage of Americans, fewer than half, that said in a recent poll that they approve of the Supreme Court.

I would not be offended if some of the Justices did not like us personally, or disagreed with the policy judgments reflected in the law.  As individuals, as citizens, as human beings, they are entitled to their personal views.  But as Justices, they are supposed to put those petty personal views and feelings aside.  They are supposed to begin their inquiry by respecting the will of the people as reflected in the work of the Congress and to defer to Congress unless the laws we pass violate the Constitution.  However, during the argument, it seemed that the Justices were second guessing the policy judgments that were made during the extended legislative process.  That is not the purpose or proper exercise of judicial review.  Acting out based on their personal views in this matter would be the height of conservative judicial activism. 

The Chief Justice seemed to understand that deference to the elected branch is fundamental to the proper exercise of judicial review.  I was struck that more than once he commented on the extreme arguments coming from other Justices by noting they were not being fair.  He was right. 

I thought I saw a Chief Justice who understands the importance of this case to all Americans, including those millions who would otherwise continue without health care insurance and access to affordable health care. This case is also significant because of the impact it will have on the American people’s view of the Supreme Court. 

We all remember when the Chief Justice was nominated and testified that if confirmed he would act with judicial modesty, honor precedent, acknowledge the limited role of the judiciary, and seek to bring the Court together.  When I voted to confirm Chief Justice Roberts, I said that I was voting with hope and faith.  I credited his testimony and trusted that he would act to fulfill his responsibilities in accordance with his testimony to the Senate.  

I said then that if I thought he “would easily reject precedent” or “use his position on the Supreme Court as a bulwark for activism” I would not have supported his confirmation.  I contrasted the technical reasoning and unjust holding of Chief Justice Taney in the Dred Scott case with the leadership that Chief Justice Warren provided in the unanimous decision in Brown v. Board of Education.  I spoke about the need to curtail the current activism of the Supreme Court and for appropriate deference to congressional action taken by the people’s elected representatives, which is precisely what should happen in the matter currently before the Supreme Court.

I was encouraged by the assurances he gave during the confirmation process that he would respect congressional authority.  I see this case as a fundamental test.  After all, he relied heavily during his hearing on the recent Gonzales v. Raich decision as controlling precedent in upholding congressional authority to act under the Commerce Clause.  He also assured us that despite his previous record of advocacy, as Chief Justice he would not continue to urge additional restrictions on Congress’s Spending Clause powers.

I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the Judicial Branch.  The conservative activism of recent years has not been good for the Court.  Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.  This case should not become an instance in which a conservative, activist majority on the Supreme Court intervenes by way of another 5-4 decision driven by ideology to rewrite the law.  The law is consistent with the understanding of the Constitution the Court and the American people have had for the better part of a century, and should be upheld.  To do otherwise would undoubtedly further erode the reputation and legitimacy of the Supreme Court.  Last month’s Supreme Court argument gave me reason to hope that the Court will do the right thing.        

The authority of Congress to enact the Affordable Care Act is firmly rooted in what previous Congresses enacted and the Supreme Court has upheld as constitutional over the last century to protect hardworking Americans.  Working Americans have long been required to pay for Social Security and Medicare by the deduction of taxes reflected in their paychecks every month.   

The key to the test for constitutionality under the Commerce Clause is whether the law substantially affects interstate commerce.  That is the long established constitutional test set forth time and time again by the Supreme Court.  As a law passed by Congress passed to regulate a market that makes up one-sixth of the U.S. economy, the Affordable Care Act is well within the limits set by the Supreme Court’s own precedent on Congress’ Commerce Clause power.

The personal responsibility requirement that is the focus of the legal challenge is necessary to ensure that Americans who have paid for their health care by buying health insurance are not stuck with paying the $43 billion in health care costs incurred by millions of Americans who do not buy health insurance and then must rely on expensive emergency health care when inevitably faced with medical problems.  That is what Congress concluded after extensive study and debate, and what we included in the text of the law itself.  There is no question this act by Congress regulates matters undeniably affecting interstate commerce. 

Even though this law easily meets the tests established by the Supreme Court’s own precedent on the limits of the Commerce Clause, partisan opponents of President Obama want judges to override these legislative decisions properly made by Congress, the elected representatives of the American people.  They want to challenge the wisdom understood by generations of Supreme Court justices from the great Chief Justice John Marshall in upholding the constitutionality of the national bank nearly 200 years ago to Justice Cardozo in finding Social Security constitutional early in the last century. 

The outlandish examples of hypothetical laws that Congress has not passed reduce these matters to ridiculous absurdities.  That may be popular in Federalist Society circles and on political blogs, but have no place in the Supreme Court’s determination.  There may come a time when Congress passes a law that is law at the edge of its authority, when the boundary of what should be seen as affecting commerce needs to be more closely considered.  This is not that case.  The Affordable Care Act is squarely within longstanding constitutional lawmaking to deal with an important national problem. 

For years, we have heard Republican Senators say that they do not want judges making law from the bench.  That is precisely what they are asking the Supreme Court to do in this case.  Republican opponents lost in Congress.  Their opposition and obstruction delayed but did not prevent enactment of the Affordable Care Act.  Now they want conservative activists on the Supreme Court to intervene and turn their policy disagreements into law by reading them into the Constitution.  That is wrong.

In his efforts to reach out to Republicans, the President adopted a model Republicans proposed in the 1990s so as not to replace private insurance with a program of Government insurance like Medicare, but to rely on personal responsibility to obtain private insurance in the marketplace or pay a tax penalty.  What is telling about the partisan nature of these challenges is that many of those who now claim that this is unconstitutional are the very ones who proposed it.  Senate Republicans were in favor of ensuring personal responsibility with an individual mandate until President Obama was for it, and now they are against it.  Their views may have changed, their partisan interests may have shifted, but the Constitution has not.

Americans are already beginning to see some of the benefits of the Affordable Care Act.  Seniors on Medicare who have high-cost prescriptions are starting to receive help when trapped within a coverage gap known as the “donut hole.”  Since the Affordable Care Act was signed into law, young adults in Vermont and around the country have gained health insurance coverage by being able to stay on their parents’ health insurance plans until their 26th birthdays.  Americans are receiving preventative screening coverage with no deductible or co-pay.  The law is making possible more and better care while controlling costs.   

The Affordable Care Act builds on some of the cornerstones of American economic security built over the last century.  I believed when it passed, and still believe today, that Congress acted within its constitutional authority to enact laws to help protect all Americans.  I hope and have faith that the Supreme Court will not overstep the judiciary’s role by substituting policy preferences for the legislative determinations of Congress. 

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