Supreme Court to Hear Case Against ObamaCare

from WSJ – On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.

Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.

Congress’s reliance on the Commerce Clause to support the individual mandate was politically expedient but constitutionally deficient. Congress’s power to regulate interstate commerce is broad but not limitless.

First among the limits is the very nature of congressional authority, which is based on specifically enumerated powers. As the Supreme Court has consistently acknowledged, the Constitution denies the federal government the type of broad public health and welfare regulatory authority known as a “general police power,” which is reserved exclusively to the states. The court has also repeatedly held that preservation of this division between federal and state authority is a matter for supervision by the courts, and its precedents make clear that congressional Commerce Clause regulation must be subject to some judicially enforceable limiting principle.

The defining characteristic of a general police power is the states’ ability to regulate people simply as people, regardless of an individual’s activities or interaction with goods or services that might themselves be subject to regulation. Thus, the Supreme Court has ruled that states, exercising their general police power, can require all resident adults to obtain a smallpox vaccination. Only this type of authority could support ObamaCare’s individual mandate, which applies to all Americans as such, regardless of any goods they may buy or own, or any activities in which they might choose to engage.

Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use health-care services, is a sufficient basis for federal regulation. Both of these arguments, advanced by ObamaCare’s defenders, are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.

On the left and right, legal thinkers too often forget that Congress has no constitutional power simply to regulate the economy. Rather, that power comes from a series of discrete authorities—to regulate interstate and foreign commerce, to tax, spend and borrow, to coin money and fix its value and so forth—that together allow it broad control over the nation’s economic affairs. As a result, congressional efforts to address national problems may well be less economically efficient than would a more straightforward exercise of police power. The Constitution subordinates efficiency to guarantee liberty.

The Constitution divides governmental power between federal and state governments so that one may check the other. This requires that the electorate be able to tell, especially on Election Day, which government is responsible for which policies and regulations with which we live.

As Justice Anthony Kennedy explained in one leading Commerce Clause case, United States v. Lopez (1995): “The theory that two governments accord more liberty than one [emphasis added] requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States.” Congress’s use of its commerce power in passing ObamaCare eradicates those “discernible lines of political accountability.”

Even so, Congress’s enumerated powers support a vast and ever growing regulatory state, much of it based upon the Commerce Clause. Neither that Leviathan, nor the Supreme Court’s precedents upholding it, is now at issue.

Justice Antonin Scalia explained in another of the Supreme Court’s recent Commerce Clause cases, Gonzales v. Raich (2005), that the power to regulate interstate commerce, especially in conjunction with the power “to make all laws which shall be necessary and proper [emphasis added] for carrying into execution” its enumerated powers, gives Congress broad authority to reach even local and non-commercial activities when necessary to make legitimate regulatory schemes effective. Raich upheld federal control of purely local cultivation, sale and use of marijuana, and it is often incorrectly cited as support for the individual mandate.

But the Necessary and Proper Clause does not guarantee Congress whatever power it would like to reach its policy goals. That provision supports only otherwise legitimate exercises of Congress’s enumerated powers. So under the Commerce Clause, Congress can try to achieve universal coverage through regulating the interstate health-care insurance market, as ObamaCare does, by requiring insurance companies operating in that market to cover pre-existing conditions. Then under the Necessary and Proper clause, Congress could also require employers to collect data on pre-existing conditions from new hires so insurers can better plan.

Requiring all Americans to have health insurance may well create a new revenue stream for insurance companies so as to lessen these new burdens on them, but it does nothing to make these new coverage requirements effective regulations of interstate commerce as the Supreme Court uses that term. In particular, the individual mandate does not prevent avoidance or evasion of these new insurance regulations. Nor does it make compliance easier to police, as was the case in Raich. There, the ability to regulate local marijuana production and use was necessary to make its interstate regulation effective because, as Justice Scalia noted, the homegrown variety “is never more than an instant from the interstate market.”

Unlike the regulations at issue in Raich, the individual mandate applies regardless of anyone’s interaction with a commodity, service or other activity, like the interstate sale or transport of marijuana, that Congress can legitimately regulate. Put another way, the Controlled Substances Act is about the regulation of drugs, not people. It affects individuals only to the extent that they interact with the substances it proscribes, and it can be avoided by simply avoiding those substances.

Americans cannot escape the individual mandate by any means because it regulates them as people, simply because they are alive and here. That requires police power authority. Permitting Congress to exercise that authority—however important its ultimate goal—is not constitutionally proper and would forever warp the federal-state division of authority.

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Jim W
10 years ago

It is scary to see that Obama’s lawyers are not doing more to stall this decision. Looks like they are confident that they can slide this by a few politicized judges. If we think Kagan will recuse herself, we’re dreaming. These folks don’t care about appearances, just about getting their agenda through. This is not just about obamacare, it is about that “warping” of state and federal police powers. This is how the dictators of nations get started toward having more and more control over our lives and the police power and fines to enforce it. Pray daily that God will lead our Supreme Court judges to do the right thing this time. America, under God, is too precious to let it start slipping away !

10 years ago

Unfortunately when we post our comments on an AMAC article we are “Singing to the Choir”. We got out of AARP where those we need to reach are still “Drinking the Kool-aid”.

Al DeDauw
10 years ago

I am 79 years old and have never been politically involved until obama became president. I’m involved now and deep down believe he will go down in history as the most corrupt president we have ever had. I admit that he is a good speaker however all socialists & dictators who have come to power are good speakers, and he has joined the list. There are a lot of people out there like an Ostrich with there heads in the sand, as to what is going on in our government, and those of you who see the light are encouraged to stand up and explain to these people what is happening so that when they go to the voting booth they help get rid of this evil decietful man. God Bless America.

Al DeDauw
10 years ago

I posted a comment about 10 hours ago and i dont see it anywhere. Would u reply on my e-mail as to why?

Catherine Izzo
10 years ago

I am 75 yrs old and have never been this anxious about anything. If this health care goes throug, I’m afraid we are doomed.

10 years ago

I’m just very worried about it all. I hope our Justices make the right choices, and God leads them correctly.

Virgo Vince
10 years ago

Thank you!!

Max Miller
10 years ago

Yes, if the U.S. goes down the Socialist drain so goes the rest of the world. A world without God?

Marlene Wadhams
10 years ago

Amen Nancy and Jerry. We Christians have been asleep too long. Time to wake up and stand for what is right. We definitely do need to pray for our nation,Kay.

10 years ago

Pray for our Nation.

Jerry W
10 years ago

God Blesses those that BlessThee and Curses those that curses Thee.Our problems are within the heart,until we change that America will continue to unravel.God will come first one way or another.May God have mercy on America. He was willing to spare Sodom and Gomorah if there was on ten rightous people.May God,s blessings be on you.

10 years ago
Reply to  Jerry W

You’re 110% right, Jerry. We have thrown God out of school, out of public buildings and almost out of the nation. Fortunately, there are still Christian churches and righteous people in America, even though the government is trying to dismiss God there, too. God cannot be happy with murder just because the mother messed up on seven minutes of “fun”–and ObamaCare says we have to pay for that murder. He says, “Before you were in your mother’s womb, I knew you.” Sounds like a living being to me. There is so much more evil in this country, but He will forgive if we turn from our wicked ways and seek His face. If we don’t, we will unravel fast. Pray for our nation and pray for a revival. America was born of God and we will die without Him.

10 years ago
Reply to  Nancy

“The world is a dangerous place, not because of those who do evil, but because of those who do nothing.” Albert Einstein

10 years ago

We must concentrate on getting the present administration out of government or there will be no government! Take the election very seriously, but first read Obama’s book, “Dreams From my Father”. He speaks very plainly of his father’s socialistic viewpoint and says that he plans to implement it in America. There are so many things included in the Healthcare Bill that have nothing to do with health, but a great deal to do with socializing the country. Leaving it in place will put our democracy down and an evil dictatorship up. Hopefully the justices will think of the people’s rights. It’s time somebody did! After all, we forget that we, the people, are the employers of this sad workforce.

Angela M. Rosati
10 years ago

obama, (lower case intended) has been groomed by the communists to kill this country. Nobody has the gonads to oppose him because they will be called racists! obama, pelosi, reid, holden, should all be shot for treason!!!! GIVE ME LIBERTY OR DEATH!! Our founding fathers knew what they were talking about. GOD BLESS AMERICA and give the Supreme Court GONADS to oppose this evil whitehouse pres.

10 years ago

hi mr president AMAC,
i am very happy to speak about obamacare , i am disappionted about how our united states health care system deteriorated, the countries where europe is rulling dont talk much about the amerihealth care, while the countries where united kingdom rules believes in using the american health insurance scheme to propagate wellness of health, i am highly dissapionted, nigeria as a nation i must say this sabotageed this mission no wonder may suffer the dissability of illness in this dispensation of this holy united sovereighn america………….i believe in you….pls justice kenedy, j.f.kenedy are innocent the big question is the 3rd world war is immenent from here now………bye for now
long live the united states of america
long live president george .w.bush

10 years ago

Nancy Pelosi, Harry Reid, and others shoved this bill thru, How many documents do you sign and not read and yet that is exactly what they told the members of congress to do when this bill came up for votes. They should both be taken out and shot for treason, for that reason only, if not for others. If they had bothered to include themselves in this bill and not excluded themselves for a far better and more comprehensive bill, I might be a little more lenient.

Also even though they did not give seniors any raises for the same year because the Social Security is tied to the cost of living index, they did manage to shove a hefty raise in through for themselves. I have never worked for any place where I could give myself a raise for mismanagement.

Marlene Wadhams
10 years ago

We could lose the freedom we have enjoyed in this country. This threat to our freedom has been going on for a long time but has become especially evident since Obama has taken office. It has happened because the American people have not paid attention to what has been going on not only in our government but also in our courts. But I am encouraged because I can see that people are finally waking up and speaking out. This 2012 election is so crucial and I hope and PRAY that people will do their homework regarding the candidates running for office and GET OUT AND VOTE.

Bettie Miller
10 years ago

Is it true that Muslims are excmpt from Obama Care (because they do not believe in or want any insurance) as well as Congress? Is whoever is president at any time also exempt? Which other groups may choose to exempt themselves?
Thanks for some inlightenment.

Tom Roberts
10 years ago

So if the health plan that Obama has planned for everyone moves forward does that mean that the Union bosses and members will give up their health plans and go on Obama’s plan??? I think not.

10 years ago

I want to know just one thing: if the Obamacare Health Care is such a great program, according to him and his cronies, HOW COME THEY HAVE EXEMPTED THEMSELVES FROM IT? What right do they have to give themselves a separate, much nicer and more palatable program, but require the rest of us to cowtow to this abomination they call “health care”?

jacqueline krukowski
10 years ago

we have to get him out of the white house, that is a fact and not just a statement. he sold our country down the drain. no one should have that kind of power.

Koleen Parks
10 years ago

I totally agree.

10 years ago

I agree,that getting obama out of office and repealing obamacare are THE 2 most important things to get done.

Ronald Dean
10 years ago
Reply to  Stephen

Out of the Whitehouse TOMORROW!

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