Unless you’ve been living on the moon, under a rock, with your eyes shut and your fingers in your ears, you’ll have heard that conservative activists nationwide have sued the government to enjoin, and therefore destroy, the carefully-balanced and carefully-wrought Affordable Care Act. As it turns out, judicial activism is more about result than process: who would’ve thought?!
They’re not doing so hot. The first suit was tossed out last Thursday. We can expect many more such dismissals to follow. Still, even if the constitutionality question is one that the Courts are quite equipped to handle, conservatives like to tease those of our ideological brethren who can’t quite explain why the Act is or should be constitutional. Truly, that’s kind of unfair. Tea partiers can quote constitutional chapter and verse, but that’s rather an empty talent, set against their patent inability to understand what they’re saying, or conceptualize the document as something more than a way of enshrining a foregone, glorious past that never was. We might compare your average amateur constitutional scholar cum tea partier to a particularly smart parrot, with a particularly media-savvy owner.
Unfortunately, sometimes, that last bit is all that matters. Which is why it’s worth noting that Rep. Schakowsky (D-Ill.) was right when she drew an analogy between the Congress’ power to regulate healthcare, and its ability to mandate desegregation. The Supreme Court has previously commented, in dicta, that desegregation would be sustainable under the Enforcement Clause of the Fourteenth Amendment (the Thirteenth and Fifteenth have their own clauses, but are inapposite). But it has previously held that Congress could end mandatory desegregation, separately and independently, on the basis of the Commerce Clause, in any public establishment that engages, even loosely, in interstate commerce. Take a Georgia restaurant that ships in lettuce to make its patented Jeff Davis-burgers. The lettuce is from Alabama, you say? Boom, regulable.
Admittedly, this is a bit of a stretch, and the result probably only obtains because desegregation occupies a very unique place in American law. The rules bent to accommodate a very necessary result. Healthcare is actually a much easier call. Unlike desegregation, the Act is aimed squarely, not indirectly, at the regulation of economic behavior. But if Schakowsky was looking for an example of just how broadly the Commerce Clause runs, she could hardly have picked a better one.