Conservative justices may hate Obamacare, but they should not overrule Congress

The Supreme Court's conservative justices deliberating on the health care law known as Obamacare should heed the historical example of Republican-appointed justice, Harlan Fiske Stone. He detested New Deal policies but argued the court had no right to overturn them.

Pablo Martinez Monsivais/AP/File
Five Republican-appointed justices front row from left, Antonin Scalia, Chief Justice John Roberts, Anthony M. Kennedy and top right, Samuel Alito Jr., and Clarence Thomas (not pictured) control the fate of President Obama's health care law, known as Obamacare. At top left is Justice Stephen Breyer in this 2010 photo.Op-ed contributor Eric Schepard argues that voters can always turn out Congress and a law they don't like. That's not the job of the high court.

This week, the Supreme Court heard oral arguments challenging the constitutionality of a congressional mandate requiring all citizens to purchase health insurance. The “individual mandate” is a controversial component of President Obama’s health care law, known as Obamacare, which will provide medical coverage to millions of Americans without it.

The mandate will survive only if at least one of the five conservative justices appointed by Republican presidents votes to uphold it. But the conservative justices’ questions at oral arguments suggest that they believe they must strike down the mandate to preserve essential economic freedoms.

As they deliberate, the conservatives should reflect on the example of another justice, Harlan Fiske Stone, who served from 1925 to 1946. Justice Stone was also appointed to the court by a Republican, indeed an adamantly conservative Republican. Stone also believed deeply in the wisdom and necessity of the free market. Nevertheless, he wrote dissents castigating his conservative colleagues for striking down New Deal measures that he personally opposed.

His reasoning explains why a justice – including a conservative justice – determined to protect the people’s freedom should uphold the Affordable Care Act’s individual mandate.

When President Calvin Coolidge nominated his fellow Amherst College alumnus Harlan Fiske Stone to the court in 1925, many assumed that Stone, a lifelong pro-business Republican and former Wall Street lawyer, would protect the laissez-faire economic policies that Coolidge believed the Constitution mandated.

However, Stone wound up leading the court’s liberals, including legal luminaries Louis Brandeis and Benjamin Cardozo, with stirring dissents against decisions striking down economic regulations.

Stone unleashed his greatest fury at a 1936 decision overturning the New Deal’s controversial Agricultural Adjustment Act (AAA). To increase devastatingly depressed prices for agricultural goods, the AAA taxed agricultural processors to fund subsidies for farmers who limited their output.

The Constitution’s text, which allows Congress to tax and spend to provide for the nation’s general welfare, seemed to authorize the AAA. But the court’s conservative majority ruled that Congress could not tax and spend to regulate agriculture, even if agriculture substantially affected the nation’s welfare.

The majority opinion argued that this limitation – which appears nowhere in the Constitution – was necessary to prevent Congress from enacting a raft of horrible regulations that would redistribute wealth throughout the economy.

Stone’s dissent reminded his colleagues that they decide only whether Congress could enact the AAA, not whether it should. Stone argued that the broad language of the tax and spend clause confirmed that the framers meant to grant Congress extensive powers to exercise at its own discretion.

And rightly so, he exclaimed, for the people can replace a Congress that enacts a dumb law, while only the unelected court’s “sense of self restraint” prevents abuses of its own power. Indeed, Stone’s closing suggested that the court’s decision to usurp Congress’s power over the national economy would ultimately threaten the liberties of the people more than the horrible regulations that the court’s majority feared.

The arguments supporting the AAA’s invalidation closely resemble those made by the conservative justices during the oral arguments that addressed the mandate’s constitutionality. Congress’s constitutionally granted power to enact all laws necessary and proper to regulate interstate commerce plainly authorizes the mandate, a crucial component of regulations designed to increase access to the vast and often indispensable interstate market in health insurance.

But the conservative justices seemed inclined to invent another formal limitation on Congress’s power that the Constitution does not mention, this time to prevent regulations of economic “inactivity” like decisions not to purchase insurance. They suggested that the limitation is necessary to prevent the passage of horrible regulations, like mandates to buy cell phones or broccoli.

As Stone would have recognized, such horrible hypotheticals should not affect the constitutionality of the mandate because the people can simply vote out a Congress stupid enough to enact them. Stone understood that slippery slopes to horrible sounding laws merely provide an excuse for justices to impose on the people a laissez-faire economic philosophy that the Constitution nowhere requires.

The five conservatives on the current court clearly believe that laissez-faire economics are essential to freedom. So did Stone. Indeed, Congressman Harlan Fiske Stone would have opposed the AAA and much of the New Deal. But Justice Stone recognized that when the Constitution authorizes congressional action, his robe did not confer to him the right to overturn a Congress that disagrees with him.

Stone thought he could best protect the liberties he cherished by allowing Congress, and not the unelected court, to choose the nation’s economic policies. Hopefully at least one of the five liberty-loving conservatives on the current court will reach the same conclusion.

Eric Schepard, a graduate of Northwestern Law School and Amherst College, has previously published in The American Journal of Legal History. He has extensively researched the legacy of Harlan Fiske Stone and its relation to contemporary issues.

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