Commentary: Conservative health-care split offers a path

What will the U.S. Supreme Court do with the constitutional challenge to the health care law? Prediction, always a delicate business, is even harder when high-stakes politics affects a case.

But an opinion issued by the U.S. Court of Appeals in Washington on Nov. 8 shifted the tea leaves at the bottom of the cup.

Justice Anthony Kennedy will be the decider. Nonetheless, it has become clear that there is no longer a unified Republican position that the mandatory coverage provision is unconstitutional. A generation gap has emerged in the conservative ranks; and some sophisticated conservatives are proposing fallback options that would allow Justice Kennedy and his colleagues to defer the issue altogether.

The key development was the 2-1 circuit court ruling and the opinion by Judge Laurence Silberman holding that Congress may mandate that Americans buy health-care insurance or pay a penalty.

Silberman, who was appointed to the court by President Ronald Reagan, has long been a prominent figure in the conservative judiciary. One can be fairly confident that he doesn’t care for the health care plan itself, which his opinion called “an intrusive exercise of legislative power” and “an encroachment on individual liberty.”

Yet in this case he reasoned that it was no more of an intrusion than requiring restaurants to serve blacks or blocking farmers from growing wheat for personal use — both of which have been upheld as legitimate exercises of congressional power in the past.

Silberman’s decision, then, was an expression of old- fashioned legal reasoning: He just didn’t find the arguments for unconstitutionality convincing. He was joined by Judge Harry T. Edwards, a Jimmy Carter appointee with whom Silberman has sometimes joined on labor-relations issues, a legal specialty the two of them share. Silberman’s opinion is a powerful signal to Justice Kennedy — a fellow Reagan appointee — that one can be a good conservative and still uphold the law.

Young movement conservatives aren’t happy about Silberman’s opinion, which has already come under attack. They grumble that he is getting soft with age. But it is worth noting that another important Reagan-era conservative, former Solicitor General Charles Fried, told Congress that he is “quite sure that the health care mandate is constitutional.”

Together these two men suggest that Kennedy’s generation does not think the court is the right venue to challenge health care.

Judge Brett Kavanaugh, a George W. Bush appointee who was the dissenter on the circuit court, comes from a younger generation of conservatives. Indeed, Kavanaugh was Kennedy’s law clerk at the Supreme Court. His opinion, which draws partly on an opinion by the Court of Appeals for the Fourth Circuit, reads like a sophisticated bench memo advising his old boss on how to vote.

What is remarkable, though, is that even Kavanaugh did not say that the mandatory-coverage provision is unconstitutional. He did call it “unprecedented on the federal level in American history.” And he warned, a little unrealistically, that its acceptance could lead to federal mandates for savings accounts and other kinds of insurance.

But instead of striking down the mandatory-coverage provision, Kavanaugh argued that it was too soon for the courts to decide whether it was constitutional. Because the penalty is a kind of tax, he wrote, the courts must wait until someone is actually penalized before they can decide the issue — a result required by a piece of legal arcana called the Anti-Injunction Act.

Here, Kavanaugh was sending a distinct message to Kennedy: You don’t have to go there. If he were to follow Kavanaugh’s lead, Kennedy could conclude that the court must wait a few years before deciding whether mandatory coverage is constitutional. Some of the other conservatives might be willing to join him rather than split 4-4 with the court’s liberals on the constitutionality of the provision.

Kavanaugh went to some pains to explain that there was good reason for a delay. The law, he said, might be reversed, or tweaked by Congress to turn the penalty into a tax that almost everyone would consider constitutional. These statements may be read as reassurance to movement conservatives that it is desirable to keep the health-care issue alive for several more years — including during next year’s presidential campaign. In any event, delay would be better for conservatives than losing Kennedy’s vote right now.

The Obama administration seems also to be considering the politics of timing in the health care case. It went against conventional wisdom by asking the Supreme Court in September to take up the issue right away rather than wait for all of the different courts of appeal to weigh in. Yet only one of the four appellate courts to have considered the issue has struck down the law. The more appeals courts uphold the law, the harder it would be for the Supreme Court to strike it down. Justice Kennedy, as the likely swing vote, would be particularly attuned to the expressed views of his colleagues on the lower tiers of the federal bench.

By asking the court to rule now, the Obama legal team was thinking strategically about how to keep a law that voters increasingly dislike from becoming a drag on the campaign. If the court hears the case during this term, then by very strong custom it will decide by the end of June — well before the presidential election. Winning before the election is no better or worse than winning after it.

If the plan is to be struck down, however, Obama’s team would rather it happen before the election, not after. That way, the Republican presidential candidate couldn’t attack Obama on the issue. And it would give Obama the chance to attack the Supreme Court as an activist tool of corporate interests, as he did following last year’s court decision to allow undisclosed corporate spending around elections.

Justice Kennedy remains the key. But with the conservative position fractured and his former law clerk offering him a way out, the likelihood of his striking down the health-care plan before the election is increasingly remote.
Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.