Fallout from the Supreme Court decision on the Affordable Care Act will stretch through the presidential election and beyond, and legal commentators have plenty of questions to address: the limitations on the Commerce Clause, the ambiguity in the relationship of taxes to penalties, the implications for federalism in the treatment of Medicaid and, perhaps most ominously, the extent to which the Chief Justice may have been swayed by the political campaign waged in the press. None of these topics will be clarified quickly. While conservative commentators have expressed divergent evaluations of the outcome, there is one point of agreement: the Affordable Care Act represents a major increase in the reach of federal power, profoundly rearranging relationships among Washington, the states and individuals. The health care debate is a struggle over constitutional order.
Just as this drama has been playing out in Washington, the potential role of the judiciary in preserving democracy and the rule of law has come to the fore across the Atlantic in a remarkably similar conflict. A constitutional conflict is emerging through the Euro crisis.
The adoption of a shared currency without a shared budgetary process was the congenital flaw of the Eurozone. The sovereign debt crises in (mainly) southern European states in the context of the shared currency have been pressuring solvent states, above all Germany, to accede to shouldering more of the burden. Makeshift solutions papered over the problem for a while, but the reluctance of many European states to undertake the welfare and labor market reforms carried out in Germany led, in the context of the recession, to a perfect storm. Until recently German Chancellor Angela Merkel has insisted on budget cutting measures. Yet, in the wake of the election of the Socialist President of France, Francois Hollande, Merkel has begun to soften her tone. On Friday, the German Bundestag approved the European Stabilization Mechanism (ESM) and the Fiscal Pact.
These measures have promptly provoked appeals to the German Constitutional Court—the corollary to the US Supreme Court—from multiple political directions. The left alleges that the Fiscal Pact would mandate austerity policies. Liberals are anxious that the legislative rights of the Bundestag would be transferred to unelected European Union officials. Euro-skeptical conservatives worry that the ESM will undermine German national sovereignty. The Court has a track record of admonishing the Merkel administration to slow the Europeanization process down in order to consult legislators more effectively. In an extraordinary move, the President of the Court, Andreas Vosskuhle appealed to German President Joachim Gauck to refrain from signing off on the ESM and the Fiscal Pact until the Court has a chance to review them, and Gauck has agreed to do so. This will block quick adoption of any significant Europeanization measures.
The meaning of the drama is this: the Eurozone crisis may require transnational solutions, but national constitutions—in particular, the German Basic Law—insists on national sovereignty and democratic processes that cannot be arbitrarily voided by an overly zealous executive branch. The Constitutional Court will still have its last word, and it may yet turn out to be the force that defends constitutional order. Expect a decision this summer.
Despite the principle of judicial review, courts—on both continents—can defer to elected governments, a healthy respect for democracy. In other words, the one force that can surpass the judiciary is the ballot box. In the United States, this means that the Affordable Health Care debate now moves from the Supreme Court into the presidential election. And in Germany? In a country profoundly averse to plebiscites, there is a growing call for an implementation of Article 146 of the Basic Law, the framework for a popular vote on transferring sovereignty to a unified Europe. It’s a big political gamble: some see the vote as an opportunity to endorse Europeanization, while others expect the German electorate to reject it emphatically. Of course elections are never a sure bet, but neither are court decisions, in the US or in Germany. In both countries however similar processes are underway, changing the democratic rules of the games and putting pressure on constitutional order.