It beggars comment. The Wall Street Journal editorial board today urges the overturn by the Supreme Court of the Affordable Care Act as ... wait for it ... an act of "judicial restraint."
Justice Antonin Scalia chimed in to note that severing would require the Justices to comb through ObamaCare's 2,700 pages and pick out the parts that are connected to the mandate and those that aren't—essentially asking them to play omniscient time travellers, if not legislators. Striking it down altogether would paradoxically be a gift of judicial modesty by avoiding the legal invention of a new law. A clean slate gives Congress the most options.
As the Court wrestles with the decision whether for the first time since the 1930s to strike down a national social insurance program, this might be an opportune moment to revisit Helvering v. Davis, the 1937 case that upheld the constitutionality of the original Social Security program. Justice Benjamin Cardozo delivered the majority opinion:
Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.
The purge of nationwide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from State to State, the hinterland now settled that, in pioneer days gave an avenue of escape. ... Spreading from State to State, unemployment is an ill not particular, but general, which may be checked, if Congress so determines, by the resources of the Nation. ... But the ill is all one, or at least not greatly different, whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house, as well as from the haunting fear that such a lot awaits them when journey's end is near.
The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. ... Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. ... A system of old age pensions has special dangers of its own if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.
Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom. Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield.
The Court of 1937 faced the problem of severability too.
Title II of the Social Security Act outlined the benefits to be paid. Title VIII laid out the revenue mechanism. Those who challenged the law urged the Court to strike down at least one of the Titles if it could not bring itself to strike down both. Cardozo's answer:
Title II being valid, there is no occasion to inquire whether Title VIII would have to fall if Title II were set at naught.
The argument for the respondent is that the provisions of the two titles dovetail in such a way as to Justify the conclusion that Congress would have been unwilling to pass one without the other. The argument for petitioners is that the tax moneys are not earmarked, and that Congress is at liberty to spend them as it will. The usual separability clause is embodied in the act. '
We find it unnecessary to make a choice between the arguments, and so leave the question open.
The crazy thing about the litigation over the Affordable Care Act is this, (a point made yesterday on Twitter by many including Josh Marshall of Talking Points Memo and also myself) because of Helvering v. Davis, nobody disputes that Congress has full authority to set in motion a national healthcare program. Congress could tax all American at any rate—or any schedule of rates, no matter how confiscatory for those at the top—and then use the money to fund a British-style National Health Service.
The question we're debating is whether Congress can constitutionally go less far, enact a less interventionist, less statist, and less centralist program, one that leaves more scope to private enterprise and more choice to the states.
In this, the analogy is strong to the Militia Acts of the 1790s: instead of creating a large, permanent national army (as it had power to do), Congress told the states to raise militias, and ordered private persons to buy the equipment necessary to serve in those militias.
The Journal ended its editorial today with a ringing peroration:
The government is mandating that everyone buy health insurance specifically, but by this reasoning any economic or personal decisions that touch on health care could be used as a pretext for federal police powers. People who lead healthy lives consume fewer medical services than others, so the government could mandate exercise, a healthy diet, and more.
This is power without limit, which is not what the Constitution provides, or what its framers intended, or what the Supreme Court has ever tolerated. That is why this week's arguments have been so careful, why they have revised the establishment's thinking, and why they are so important for the future of American liberty.
Those words carry an ironic meaning, however. For if this court heeds the Journal's advice, then Congress will confront a new legal reality when it next confronts the healthcare problem, as it surely will: The way to pass constitutional muster is for the federal government to claim more power—to tax rather than to mandate, to spend itself rather than regulate how private insurers spend. Such a policy truly would have frightening consequences for American liberty. And today's over-confident, all-or-nothing pseudo-conservatives are—like characters in some Greek tragedy—working blindly to face the outcome they should most abhor.