While there is no precedent that I know of for this, it would be of great benefit to the country if the Supreme Court remanded the Affordable Health Care Act back to Congress without a decision. Any ruling that does not uphold the law in its entirety will make it useless anyway, so it will go back to Congress no matter which side claims victory. Recent commentators have suggested that severability is an option; it is not. I don’t know anyone who has put forward a scenario describing how the law will function without the individual mandate, and I don’t think anyone can. Without it, the entire funding mechanism is stalled because, put simply, the machine needs fuel to run. The funding must be continuous and predictable, like any other energy source.
But what will such a remand “decision” look like? Well, the Court remands cases all the time, only it reverses the appellate court’s decision first, and sends it back there for a new ruling in light of its instructions. The difference this time is it goes straight back to Congress exactly as it is, but with the proviso that no decision will be made until Congress has another opportunity to create something that, whether good or bad, can at least function within the confines of legitimate governmental authority. And there won’t be any instructions. This is important because the law is an entirely new creation. It is a demonstration by the American people that they want Congress to do something about this problem, and this law is the result. It was made into law properly; that’s not the challenge here. No, it is being challenged because it contains a fatal Constitutional flaw, and the highest court in the land cannot avoid having to recognize that. That is why the individual mandate must be struck down.
(Parenthetically, what I’d like to see happen is if the Court struck down Wickard v. Filburn too. Dream on!)
But there is also unique opportunity here. Since the law has not gone into effect yet, there is time for Congress to amend it on its own with no consequences, since it has had no practical impact on any citizen, and there will be no refunding of revenues. True, the argument has arisen that review can be delayed because the Anti-Injunction Act forbids hearing challenges to the “assessment or collection” of a tax until after it has been paid. However, this point is inapt because the individual mandate is clearly a penalty, not a tax. Therefore, the case is ripe and ready today, and the Court will have to vote on it up or down unless it creates a novel alternative.
I think a remand without decision will be favorably received. There is nothing in the Constitution that forbids it, and it will demonstrate a proper use of the Court’s powers. It will simply say that the matter is tabled, in effect, pending Congressional action by a date certain — say six months after the seating of the new Congress — and that it can be resumed when and if the Petitioners reintroduce the case at that time. Of course, Congress may do nothing, but that certainly won’t reflect badly on the Court. Congressional deadlock seems to be normalcy nowadays. But I don’t think that would happen. The country would welcome a gesture, by at least one of the three branches, that the will of the people counts more than partisanship. The Court could take a leadership role by declaring its deference to Congress because it is the branch most directly answerable to the citizenry. And in the wake of public approval, I think Congress would rise to the opportunity.
One final word. In my cursory research on Congressional remands, I could find no precedent. But a 2010 blogpost by Dr. Bill May, in cavemannews.com, raised this proposal outright — in a different context — and I am grateful for that, as I am now a devoted fan.