LIBERTY LANDMARK WEEK

March 26, 2012

One thing was clear out of the Supreme Court's opening session Monday on the federal health care overhaul -- the justices are eager to issue a ruling, and unlikely to punt. 

The anticipation over how the court might rule on the merits of the law will have to wait another day, as the justices revealed very little about their views during opening arguments. What did come out of the day's 90-minute session -- the first of three days covering four unique challenges -- is that the justices are poised to decide this year on the constitutional validity of the controversial law. 

The most important case to reach the Supreme Court, ostensibly since Roe v. Wade, began with the words, “There is no reason to think Congress exempted the penalty as a tax.”

No acknowledgement of the case’s significance. No grandiose declaration of constitutionality. In essence, it was a thesis statement – and a boring one at that, by many accounts.

But the ensuing hour and a half of argumentation provided a glimpse into both the controversial and technical aspects of the healthcare debate – starting with the question on whether or not the Court should even issue a decision on the matter right now.

There has been much speculation that the nine justices might throw out the case on jurisdictional grounds, involving the Anti-Injunction Act. It’s a contentious election year, and this decision has the power to sway the way the country votes in November. Besides, the Court tends to defer to Congress on matters legislative; they like to exhaust all other options before issuing a ruling on whether or not a law is constitutional.

But let's review what's at stake here.

Does the federal government have the power to order all Americans to purchase health insurance that meets the federal government’s standards? If so, liberty is at stake.

I think it is worth taking a few steps back to remind ourselves that while this requirement is an unprecedented infringement on Americans’ liberty, the legislation as a whole — in its conception, not just its details — is an offense against constitutional government. As is much of modern government, and conservatives should not shrink from saying so.

The Constitution provides few and defined powers to the federal government, as James Madison put it. The precise scope of those powers has always been subject to debate, but that the description does not apply to today’s federal government cannot seriously be denied. The Constitution divides power among the branches of the federal government: But today’s government features countless agencies that combine executive, legislative, and judicial functions. The Constitution’s structure and logic militate against commingling state and federal powers.

Today’s government includes vast state-federal spending programs in which the division of responsibility is blurred by design. These are not merely formal deviations from the constitutional template. They subvert its goals of liberty for citizens, accountability for governments, and security for property.

What is needed today, then, is not so much the protection of constitutional government as its reclamation. The courts have an indispensable role to play in that project, but it will also necessarily involve shrewd and patient political action.

It is in the context of an already hypertrophied government that the discrete-yet-momentous legal controversies over Obamacare should be judged. As the plaintiffs contend, a federal mandate would expand federal powers still further, and in a way that does not admit of any principled limit.

It would mean that the federal government would have the kind of general police power that has heretofore been considered a monopoly of the states. Thus even someone who believes today’s administrative state to be broadly in accordance with the Constitution should balk at the mandate.

The federal government has the power to regulate commerce among the states, but that power neither includes nor implies the authority to force individuals to purchase particular products. If it is read to include or imply that authority, then it must surely follow that the federal government may institute a compulsory calisthenic program for all Americans.

The administration argues that an individual’s decision not to purchase health insurance has an effect, however minute, on health markets nationally, and that such decisions when aggregated have a large effect. But of course the same is true of individuals’ decisions to remain sedentary or eat too many sweets.

The mandate cannot be justified, either, under the Constitution’s grant of authority to Congress to make all laws “necessary and proper for carrying” its legitimate powers “into execution.”

The mandate is not necessary to execute Obamacare’s insurance regulations. It is necessary only to stop some of their unwanted effects.

Obamacare requires insurers to offer the same policies at the same prices to the sick and the healthy alike.

Absent a mandate, that regulation will cause insurance premiums to rocket skyward. But regulatory folly cannot itself be a source of additional constitutional authority. Nor can a blunt command to citizens be a “proper” method of executing a regulation.

That should close the constitutional case. But we need not worry that the Constitution has barred us from adopting a policy indispensable to solving the problems of American health care.

The mandate is supposedly a measure to reduce cost-shifting by the uninsured, and the insurance regulations to help those with pre-existing conditions get insurance. But there are less intrusive, and indisputably constitutional, ways to address these concerns.

A deregulatory program would reduce cost-shifting by making it easier for the uninsured to purchase coverage, and enable people to keep their insurance while sick by making them rather than their employers the owners of their policies.

Democrats chose to include the mandate in the bill because, notwithstanding its unpopularity, it was more politically expedient than other ways to reach their goals. That calculation does not make it constitutional. It does, however, suggest that the legislation would never have passed without the mandate.

The provisions interlock, and they must either stay or go together. A proper understanding of the Constitution compels them to go — and that should remain conservatives’ goal whatever the Court does.

I will readily admit that I am not an attorney and know very of the law in comparison with those who have studied and read law as a career. But for those who have, including those in President Obama's legal team, five people will decide if the healthcare mandate is Constitutional. Five people will decide how much liberty we all have in America today.


We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.