By Peter C. Riley

What is at stake in filling Justice Ruth Bader Ginsburg’s vacancy? It’s not just Roe v. Wade, and more than the Patient Protection and Affordable Care Act (ACA), commonly referred to as “Obamacare.” What hangs in the balance is the ability of our state and Federal Governments to effectively regulate the large national and international organizations which conduct commercial activity in our country. The goal of many large business interests is the evisceration of the government’s regulatory power. This can be done under a constitutional philosophy presently shared by four current Justices, and, to a lesser degree, Chief Justice John Roberts.

Some constitutional history is necessary to understand what is at stake. Our Constitution was ratified in 1789, granting powers and imposing limitations on the new federal government. Article I, Section 8, grants powers to Congress, including the power to collect taxes and regulate commerce among the several states. After the federal government crushed the slave state rebellion, three constitutional amendments were adopted: the 13th, which abolished slavery; the 15th, which was supposed to protect voting rights; and the 14th, which prohibited states from denying due process and equal protection and abridging the privileges and immunities of citizens.

The promises of the 14th and 15th Amendments to the freed slaves were not fulfilled. Almost a century passed before meaningful steps were taken to protect voting rights. The 1883 Civil Rights cases held the 14th Amendment only protected citizens from action by states, and not private individuals or organizations. However, the post-Civil War Supreme Court first applied the 14th amendment protections to business organizations, and then invalidated many attempts by the public, through their federal and state governments, to regulate business organizations and protect the public. One way meaningful regulation was thwarted was by a narrow interpretation of the commerce clause, which has been the usual constitutional basis for regulatory action.

This changed in 1937 when the Supreme Court began upholding the New Deal regulations through an expansive interpretation of the commerce clause, which recognized there had been substantial changes in commercial activity since 1789. This change occurred shortly after FDR proposed expanding the size of the Supreme Court, and is referred to as the “switch in time that saved nine.” Today, most regulatory legislation is based on the broad interpretation of the commerce clause. Remember the civil rights cases? The constitutional basis for civil rights legislation passed since the 1960s is the commerce clause, on the rationale that discrimination is a drag on economic activity, thus implicating commerce.

A reactionary movement started in the early 1980s, which sought to limit governmental power. It is based on a theory of constitutional interpretation called “Originalism” which proclaims that constitutional interpretation should be based upon what the authors of the Constitution thought in 1789. The narrow 2012 decision in NFIB v. Sebelius upholding the ACA illustrates the application of this theory.

Many people assume the federal government has the power to regulate the health care industry, which comprises almost a fifth of the national economy. Many would accept that courts should look at what the words of the Constitution mean in the context of modern America. How do you surmise what the authors of the Constitution thought about health care in 1789, more than a century before the recognition of the germ theory of disease, and at a time when the common medical treatment was bleeding, through leeches and incisions?

The Obama administration’s plan to overhaul the financing of health care relied on private insurance, rather than a public opinion. A core element was the prohibition against excluding people with preexisting conditions. To accomplish this, the private insurance industry needed a broad population of insured. Therefore, the ACA provided for an individual mandate, which was punishable by a small fine if people refused to get insurance. Justices Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan agreed the individual mandate was proper under the commerce clause. Originalists Antonin Scalia, Clarence Thomas and Samuel Alito believed the individual mandate exceeded the federal government’s commerce clause’s power, and Justice Anthony Kennedy agreed. The ACA individual mandate was narrowly upheld because Chief Justice Roberts agreed with the Originalists’ position on the commerce clause, but nonetheless was the saving vote to uphold the ACA individual mandate as Constitutional under the taxation power.

The Republicans’ 2017 tax cut removed the penalty for failure to comply with the individual mandate from the ACA. The Fifth Circuit Court of Appeals, in the 2019 case, Texas v. the United States, held that the individual mandate, and therefore there the entire ACA, was no longer constitutional because of the removal of the penalty. The appeal of this case will be argued before the Supreme Court shortly after the election. Justices Scalia and Kennedy have been replaced by Originalists Justice Gorsuch and Cavanaugh. Confirmation of the President’s nominee, another Originalist, will likely mean the end, not only of the ACA, but also many other laws that protect the public from large business organizations. This is what is at stake.

This piece was originally published in The Gazette.