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Liberty and ObamaCare
The Affordable Care Act
claims federal power is unlimited. Now the High Court must decide.
Washington, DC -- Few legal cases in the modern era are
as consequential, or as defining, as the challenges to the Patient
Protection and Affordable Care Act that the Supreme Court hears beginning
Monday. The powers that the Obama Administration is claiming change the
structure of the American government as it has existed for 225 years. Thus
has the health-care law provoked an unprecedented and unnecessary
constitutional showdown that endangers individual liberty.
It is a remarkable moment.
The High Court has scheduled the longest oral arguments in nearly a
half-century: five and a half hours, spread over three days. Yet Democrats,
the liberal legal establishment and the press corps spent most of 2010 and
2011 deriding the government of limited and enumerated powers of Article I
as a quaint artifact of the 18th century. Now even President Obama and his
staff seem to grasp their constitutional gamble.
Consider a White House
strategy memo that leaked this month, revealing that senior Administration
officials are coordinating with liberal advocacy groups to pressure the
Court. "Frame the Supreme Court oral arguments in terms of real people and
real benefits that would be lost if the law were overturned," the memo
notes, rather than "the individual responsibility piece of the law and the
legal precedence [sic]." Those nonpolitical details are merely what "lawyers
will be talking about."
The White House is even
organizing demonstrations during the proceedings, including a "'prayerful
witness' encircling the Supreme Court." The executive branch is supposed to
speak to the Court through the Solicitor General, not agitprop and crowds in
The Supreme Court will not
be ruling about matters of partisan conviction, or the President's
re-election campaign, or even about health care at all. The lawsuit filed by
26 states and the National Federation of Independent Business is about the
outer boundaries of federal power and the architecture of the U.S. political
The argument against the
individual mandate—the requirement that everyone buy health insurance or pay
a penalty—is carefully anchored in constitutional precedent and American
history. The Commerce Clause that the government invokes to defend such
regulation has always applied to commercial and economic transactions, not
to individuals as members of society.
This distinction is crucial.
The health-care and health-insurance markets are classic interstate
commerce. The federal government can regulate broadly—though not without
limit—and it has. It could even mandate that people use insurance to
purchase the services of doctors and hospitals, because then it would be
regulating market participation. But with ObamaCare the government is
asserting for the first time that it can compel people to enter
those markets, and only then to regulate how they consume health care and
health insurance. In a word, the government is claiming it can create
commerce so it has something to regulate.
This is another way of
describing plenary police powers—regulations of private behavior to advance
public order and welfare. The problem is that with two explicit exceptions
(military conscription and jury duty) the Constitution withholds such power
from a central government and vests that authority in the states. It is a
black-letter axiom: Congress and the President can make rules for actions
and objects; states can make rules for citizens.
The framers feared arbitrary
and centralized power, so they designed the federalist system—which predates
the Bill of Rights—to diffuse and limit power and to guarantee
accountability. Upholding the ObamaCare mandate requires a vision on the
Commerce Clause so broad that it would erase dual sovereignty and extend the
new reach of federal general police powers into every sphere of what used to
be individual autonomy.
These federalist protections
have endured despite the shifting definition and scope of interstate
commerce and activities that substantially affect it. The Commerce Clause
was initially seen as a modest power, meant to eliminate the interstate
tariffs that prevailed under the Articles of Confederation. James Madison
noted in Federalist No. 45 that it was "an addition which few oppose, and
from which no apprehensions are entertained." The Father of the Constitution
also noted that the powers of the states are "numerous and infinite" while
the federal government's are "few and defined."
That view changed in the New
Deal era as the Supreme Court blessed the expansive powers of federal
economic regulation understood today. A famous 1942 ruling, Wickard v.
Filburn, held that Congress could regulate growing wheat for personal
consumption because in the aggregate such farming would affect interstate
wheat prices. The Court reaffirmed that precedent as recently as 2005, in
Gonzales v. Raich, regarding homegrown marijuana.
The Court, however, has
never held that the Commerce Clause is an ad hoc license for anything the
government wants to do. In 1995, in Lopez, it gave the clause more
definition by striking down a Congressional ban on carrying guns near
schools, which didn't rise to the level of influencing interstate commerce.
It did the same in 2000, in Morrison, about a federal violence
against women statute.
A thread that runs through
all these cases is that the Court has always required some limiting
principle that is meaningful and can be enforced by the legal system. As the
Affordable Care Act suits have ascended through the courts, the Justice
Department has been repeatedly asked to articulate some benchmark that
distinguishes this specific individual mandate from some other purchase
mandate that would be unconstitutional. Justice has tried and failed,
because a limiting principle does not exist.
The best the government can
do is to claim that health care is unique. It is not. Other industries also
have high costs that mean buyers and sellers risk potentially catastrophic
expenses—think of housing, or credit-card debt. Health costs are
unpredictable—but all markets are inherently unpredictable. The uninsured
can make insurance pools more expensive and transfer their costs to those
with coverage—though then again, similar cost-shifting is the foundation of
The reality is that every
decision not to buy some good or service has some effect on the interstate
market for that good or service. The government is asserting that because
there are ultimate economic consequences it has the power to control the
most basic decisions about how people spend their own money in their
day-to-day lives. The next stops on this outbound train could be mortgages,
college tuition, credit, investment, saving for retirement, Treasurys, and
who knows what else.
Confronted with these
concerns, the Administration has echoed Nancy Pelosi when she was asked if
the individual mandate was constitutional: "Are you serious?" The political
class, the Administration says, would never abuse police powers to create
the proverbial broccoli mandate or force people to buy a U.S.-made car.
But who could have predicted
that the government would pass a health plan mandate that is opposed by two
of three voters? The argument is self-refuting, and it shows why upholding
the rule of law and defending the structural checks and balances of the
separation of powers is more vital than ever.
fallback is the Constitution's Necessary and Proper Clause, which says
Congress can pass laws to execute its other powers. Yet the Court has never
hesitated to strike down laws that are not based on an enumerated power even
if they're part of an otherwise proper scheme. This clause isn't some ticket
to justify inherently unconstitutional actions.
In this context, the
Administration says the individual mandate is necessary so that the
Affordable Care Act's other regulations "work." Those regulations make
insurance more expensive. So the younger and healthier must buy insurance
that they may not need or want to cross-subsidize the older and sicker who
are likely to need costly care. But that doesn't make the other regulations
more "effective." The individual mandate is meant to
offset their intended financial effects.
Some good-faith critics have
also warned that overturning the law would amount to conservative "judicial
activism," saying that the dispute is only political. This is reductive
reasoning. Laws obey the Constitution or they don't. The courts ought to
defer to the will of lawmakers who pass bills and the Presidents who sign
them, except when those bills violate the founding document.
As for respect of the
democratic process, there are plenty of ordinary, perfectly constitutional
ways the Obama Democrats could have reformed health care and achieved the
same result. They could have raised taxes to fund national health care or to
make direct cross-subsidy transfers to sick people. They chose not to avail
themselves of those options because they'd be politically unpopular. The
individual mandate was in that sense a deliberate evasion of the
accountability the Constitution's separation of powers is meant to protect.
Meanwhile, some on the right
are treating this case as a libertarian seminar and rooting for the end of
the New Deal precedents. But the Court need not abridge
stare decisis and the plaintiffs are not
asking it to do so. The Great Depression farmer in
Wickard, Roscoe Filburn, was prohibited from growing wheat,
and that ban, however unwise, could be reinstated today. Even during the New
Deal the government never claimed that nonconsumers of wheat were affecting
interstate wheat prices, or contemplated forcing everyone to buy wheat in
order to do so.
The crux of the matter is
that by arrogating to itself plenary police powers, the government crossed a
line that Justice Anthony Kennedy drew in his Lopez concurrence.
The "federal balance," he wrote, "is too essential a part of our
constitutional structure and plays too vital a role in securing freedom for
us to admit inability to intervene when one or the other level of government
has tipped the scale too far.
The constitutional questions
the Affordable Care Act poses are great, novel and grave, as much today as
they were when they were first posed in an op-ed on these pages by the
Washington lawyers David Rivkin and Lee Casey on September 18, 2009. The
appellate circuits are split, as are legal experts of all interpretative
The Obama Administration and
its allies are already planning to attack the Court's credibility and
legitimacy if it overturns the Affordable Care Act. They will claim it is a
purely political decision, but this should not sway the Justices any more
than should the law's unpopularity with the public.
The stakes are much larger
than one law or one President. It is not an exaggeration to say that the
Supreme Court's answers may constitute a hinge in the history of American
liberty and limited and enumerated government. The Justices must decide if
those principles still mean something. -- FM Duck
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