Long-Term and Short-Term Analysis in Constitutional Law and the Health Care DecisionRichard A. Epstein • July 3, 2012 • 9:28 am
Every important legal decision has two key dimensions. The first is the outcome in the individual case, and the second is as a precedent for future development. There are, in practice, very few cases that have both long and short term consequences, and in many of these they tend to cut the same way. The short term decision in Brown v. Board of Education had dramatic impact on the system of segregated schools in the South. Its long term effect was to solidify the elimination of an elaborate interlocking set of institutions that had developed since Plessy v. Ferguson had been decided in 1896.
In other cases, the long and short-term consequences cut in different directions. In the great New Deal cases, Chief Justice Charles Evans Hughes thought that he had defused an immediate political crisis by sustaining both the National Labor Relations Act against challenges under the commerce clause in NLRB v. Jones & Laughlin Steel, and a minimum wage law for women only in West Coast Hotel v. Parrish, both by 5-to-4 votes. The short term peace brought with it long term dislocations. The expected life of the NLRA and the minimum wage is very long indeed, and shows no sign of coming to an end. The resource misallocations of both statutes are enormous. I have no doubt that the Supreme Court would have survived any challenge to its legitimacy if it had followed previous precedents. Its legitimacy had not come to an end when it had ruled against the Roosevelt administration only two years before.
The same, I fear, is true with respect to the Affordable Care Act. That case presented an opportunity to develop a coherent explanation as to why the commerce clause had gone far beyond its sensible limitations in the New Deal case, and used that as a ground to limit further expansions. Justice Roberts sensed that point. But then he gave it all away by refusing to hold that where Congress cannot regulate, it cannot tax either. There are differences, to be sure, between an order to do X, and an order to pay an enormous tax for not doing X. But those are so small that no one can figure them out at all. And when the tax is on not buying health care insurance, it could also be on not riding a bicycle or any other nonactivity in the world.
The case thus looks all too much like the key New Deal decisions. An unwieldy and unworkable health care plan is said to be some short term good, which it decidedly is not. To achieve that goal, the Chief Justice adopts an Alice-in-Wonderland view of taxation. As I have written elsewhere, he was neither a good constitutional lawyer nor a good judicial statesman. Instead, he was wrong in both the short-and the long run.