The appellate court ruling on Obamacare underscores an increasingly important side effect of today’s congressional dysfunction and gridlock: The rising power of the courts, particularly the U.S. Supreme Court. Congress, unable to agree on almost anything, is incapable of responding to court interpretations of often-vague statutes even when the Court invites a response.
That’s a big change.
“Polarization already is leading to an increase in the power of the [Supreme] Court against Congress, whether or not the justices affirmatively seek that additional power,” Richard Hasen, a University of California at Irvine law professor noted in a 2012 law review article. In the past two decades, the rate of congressional overriding of Supreme Court statutory decisions has plummeted, he found, from an average of 12 in each two-year congressional term during the 1975-1990 period to an average of 5.8 overrides for each term from 1991-2000 and to 2.8 average number of overrides for each term from 2001-2012.
There is some quibbling among law professors about those tallies, but even Mr. Hasen’s critics note a significant decline in the number of times Congress has overridden a court decision lately. “Overrides have fallen off substantially since 1998,” Yale Law School’s Matthew Christiansen and William Eskridge Jr. have written.They identify the turning point at the Clinton impeachment, which exacerbated partisan tensions in Congress.
Whatever the precise count, the trend matters greatly. With the Civil Rights Act of 1991, Congress overrode as many as a dozen Supreme Court rulings. But Congress hasn’t responded to the court’s 2013 undoing of provisions of the Voting Rights Act that had been reaffirmed overwhelmingly by Congress in 2006.
If the appellate panel’s 2-1 ruling is upheld, the bitter partisan debate over the Affordable Care Act will make it hard to fix the flawed statute so that those who buy insurance from federally run exchanges in 36 states will be eligible for the same subsidies offered to those in states that have set up their own exchanges. The U.S. Court of Appeals for the D.C. Circuit expressed reluctance about its decision.
In the majority opinion, Judge Thomas Griffith wrote: “Our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by life-tenured judges.”
It’s hard to argue with that logic. The problem isn’t with the courts, but with Congress. “In the past, when the court said Congress wasn’t clear, the Congress would come back and clarify,” says Anita Dunn, a former Obama White House aide now at public relations firm SKDKnickerbocker. “Now Congress says: We’re going to leave it alone. The power has devolved to the Court, which is the least accountable, least transparent and least representative branch of government.”