Americans should argue with Madison, but we should also take his words seriously when we do so.
Breathless press accounts aside, the Trump administration is far from the first and is wholly within its constitutional rights to decline to defend a law in court. The Obama administration did the same with the Defense of Marriage Act, to ample fanfare, just seven years ago.
What makes the Justice Department’s decision not to defend the shell of the individual mandate and the consumer-protection provisions of Obamacare remarkable is that Republicans fully control Congress and the White House. Repealing those provisions would be an afternoon’s work if they had the political will. The highest hurdle would be the compromise required to surmount a Senate filibuster.
But this would entail electoral accountability—as would repealing Obamacare wholesale, which Congress also could have done. Republicans made bold to remove the (unpopular) individual mandate penalty last year; the removal was part of the Tax Cut and Jobs Act. But now they are, in effect, following in a long tradition they once repudiated: asking the courts to do the potentially unpopular parts so they don’t have to.
Surely there are arguments to be made against the protections in question. They unquestionably place the insurance market at risk in the absence of the now-removed penalty on consumers for not buying insurance coverage. But as a matter of constitutional health, these arguments should be made in forums where officials are responsible to the public.
There is no small irony in a Republican Party that once made a martyr of Robert Bork, a champion of majority rule and judicial restraint, now turning to the courts to fight their political battles. It is bad enough when elected officials do so because they cannot win through the democratic process. This, though, is a case in which they could prevail through the proper constitutional channels but simply do not want to be held to account for doing so.
The Justice Department, like the state of Texas, the lead plaintiff, argues that the individual mandate in the Obamacare law, having been sustained as a tax, is no longer constitutional without the penalty and, crucially, that it is not severable from the guaranteed-issue and community-rating provisions of the law. This is a backhanded way of asking a judge to perform the legislative surgery from which Congress and the administration shrank. Without doubt, these provisions threaten insurers unless healthy people are brought into the insurance market. Yet it is equally plain that they are constitutional regulations of the insurance market.
The severability argument is that constitutionally invalidating one part of the legislative scheme requires invalidating parts of the law that depend on it. But these provisions would be independently constitutional regulations of the insurance market even if they were deemed to be imprudent when standing alone. As Justice Scalia taught over and again, “stupid” and “constitutional” are not incompatible terms.
The problem in this case is that what Republicans regard as stupid is also popular. Hence the rush to the courts. Conservatives will rue it.
It is a good rule of constitutional thumb not to trust anyone with a power one would not want wielded by one’s adversaries. The courts may be more hospitable to conservative policy arguments now, but that is a transient phenomenon. When progressives take control of the judiciary—as they will; no matter the branch of government, the other side eventually always wins—Republicans will have no principled basis on which to object to their opponents’ seeking policy resolution from the courts.
The use of courts for that purpose is also, as I indicated, politically unhealthy. It lets elected officials off the hook for their choices. Perhaps more important, it releases the people from responsibility from theirs: Voters cannot simultaneously and rationally require insurers to cover everyone who needs insurance coverage while opposing the unpleasantness of bringing into the insurance market even those who feel they do not need coverage. As the Attorney General’s letter on the subject noted, that would enable people to purchase insurance after they got sick or were on their way to the hospital.
More broadly, the use of the courts to make policy decisions vitiates the need for the reason-giving and persuasion that are the essence of a self-governing regime. In this, Republicans are moving down a trail that progressives blazed through decades of turning to the Warren and Burger courts when they did not like electoral outcomes. Republicans claim to be making constitutional arguments, but the Father of the Constitution would not recognize them. James Madison called majority rule “the vital principle” of the Constitution and said the Framers never intended the judiciary to have the final word even over constitutional disputes.
The practice of state officials’ suing the federal government to change its policy decisions, as opposed to persuading what Madison called their “common constituents” to vote differently, is especially pernicious. Whence Texas’ standing here, any more than Maryland’s standing to sue over the Emoluments Clause? There is a place for judicial review of disputes between the federal and state governments because the only other way to resolve them is, in Madison’s words, “an appeal to the sword.” But the trend of state officials on both sides of the aisle suing the national government because they do not like its policy decisions, regardless of whether they impinge on state authority, turns every policy dispute into a judicial dispute.
That is fundamentally hostile to the principle of republicanism. Majority rule does not assume every decision a majority makes is right—on the contrary, it demands of citizens that they be accountable for their own votes and that they vote differently when they want policies to change—but it does assume there is ultimately no other legitimate way of settling differences. Rather than disempowering majorities, the Madisonian system seeks to place them in circumstances conducive to deliberation.
To be sure, the Constitution specifies some things majorities may not do. But a massive accumulation of precedent and practice would have to be unwound to declare that Congress cannot regulate insurance markets.
The reason the administration is not pursuing that result legislatively despite its firm grip on Congress is that it would be unpopular in the middle of an already precarious midterm election campaign. But those are the breaks in a regime of republicanism. Elected officials make their best arguments, enact their best policies and, ultimately, let the voters decide. If the voters wish to hobble the insurance markets on which they depend through a regulatory scheme that has been undone piecemeal, it is not for the courts to rescue them. To say otherwise is to risk moral hazard: A judicial safety net encourages reckless voter and congressional behavior. Reflexive use of the courts also atrophies the skills of political engagement and inflames the losing side, which feels it lost an unfair fight.
It is unhealthy enough for a republic to give the last word concerning its fundamental law to judges it cannot control. But to do so for the express purpose of dodging electoral accountability is worse. The administration’s aversion to Obamacare could certainly be defended. But the Constitution demands that it be defended in forums in which elected officials can be held accountable. A genuine ethic of constitutional restoration would not only permit but compel those officials to make and defend their choices. If Obamacare should be repealed wholesale, Republicans should stand up and do it. Those who say they value personal responsibility should not hide behind judicial skirts.