MARCH 29, 2012 UPDATE – A TRAIN WRECK FOR THE ADMINISTATION
The weight of opinion is now in. The mandate is dead and the entire measure is likely to be flushed. We won’t know more until the high Court publishes its opinion, most likely in June. But this is bad news for Obama and good news for Romney.
Paul Clement for the challengers: “What makes this different is that the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act… they are interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid; if you follow that through what you end up with at the end of that process is just sort of a hollow shell.”
Justice Roberts: “Congress had a balanced intent. You can’t look at another provision and say this promotes patient protection without asking if it’s affordable.”
Justice Scalia: "My approach would be to say that if you take the heart out of this statute, the statute's gone."
Justice Sotomayor: “Unless Congress tells us directly it is not severable, we should let them fix their own.” … “Why in a democracy structured like ours where each branch does different things, why should we involve the court in making a legislative judgment?”
CNN's Jeffrey Toobin: “This still looks like a train wreck for the Obama administration. It may also be a plane wreck."
Justice Kennedy is the swing vote on the lynchpin commerce Clause issue. Note this exchange:
“Justice Kennedy later expressed some sympathy for the government's claim that young people who don't buy insurance are "very close" to affecting interstate commerce, but the key distinction is that proximity is not enough and can't be enforced by the courts. To regulate individuals at any point in their lives merely because they exist would still undermine the accountability and destroy the dual sovereignty that are the touchstones of his jurisprudence.”
Wall Street Journal
The Obama Care Case analyzed
By Jay B Gaskill
Also posted on The Policy Think Site at - http://jaygaskill.com/DangerousPower.htm.
From time to time history presents moments of correspondence between the religiously motivated (we-pray-the-world-will-be-a-better place), and the well-meaning social engineers, (we-will-make-the-world-a-better-place).
These are combustible moments.
I’m noticing on Facebook and elsewhere a prayer surge in favor of the administration’s position on the Supreme Court’s pending review of the so called “Affordable Health Care Act”[i]. [An aside: Beware misleading labels. Whatever the policy virtues of Obama Care, affordability is not among them.] This prayer support movement is being cast in a number of forms; the one that recently came to my attention was “prayerful witness on health care”.
The last major push for social reform in the USA that represented the alliance of prayer and public policy took place in 1920, after a great deal of public dispute, when the country banned beer, wine and booze. In that fateful year, the income tax was generating almost 10 times the tax money received from that older cash cow, liquor taxes.
Income-tax revenues allowed Congress to enact alcohol prohibition.
Here’s the takeaway point. Imposition of prohibition was a violation of the existing constitutional structure. Therefore it had to be accomplished via a constitutional amendment (the 18th amendment, thankfully repealed under Teddy Roosevelt by the 21st Amendment).
Here’s a second takeaway point. If the current administration’s constitutional theory supporting Obama Care’s mandate to all Americans to purchase insurance is upheld, we would not need a constitutional amendment to enact prohibition. Please understand – I’m not suggesting that prohibition will actually come back, just that the administration’s theory will leave us with no further constitutional barrier, check or balance against the “we-will-make-the-world-a-better-place” impulses of the social engineers, except a few specifically enumerated rights like free speech.
The great constitutional scheme on which our republic is based consists of enumerated powers of government balanced against enumerated rights in a specifically biased way: The enumeration of rights was not intended to be exclusive – there are non-enumerated rights as well (such as privacy); but the short list of enumerated powers was intended to be exclusive – there were to be no powers given the federal government that were not enumerated in the constitution.
This frames the overriding importance of the Obama Care case. The administration is relying on a single enumerated power to force all Americans to purchase insurance: It is the so called Commerce Clause of Article I Section 8, which reads as follows: The Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.
In its origin, the commerce power was designed and used to promote free trade among the states, to effectively restrain them from acting like sovereign nations, barring them from imposing duties and tariffs that would impede the flow of commerce within the US.
There is a century of constitutional litigation here, well beyond the scope of this piece to summarize[ii]. But suffice it to say that this single grant of power has supplied the foundation of a huge expansion of federal authority.[iii] At its most extreme, the proponents of the commerce clause power will argue that even passive behavior affects commerce (much as the flutter of a prehistoric butterfly might affect the timing of Lincoln’s birth.) This view converts the grant of a power originally designed to free the flow of commerce among the states into a truly comprehensive authority over every aspect of our behavior.[iv] The expansion of power is staggering because our every action can be viewed as consumer behavior. If the administration wins this point, the enumeration of powers structure of our constitutional system is dead.[v]
Consider what might have happened. We might have had congressional hearings, a measure-by-measure debate and a careful consideration of individual reform measures. Instead we were treated to the sorry partisan spectacle of a frantic effort to push through a package so comprehensive and poorly drafted that, even now we are discovering problems that need correction. The measure’s flaws have prompted the administration to grant 1,200 waivers to date. We started with a heath care system that served 80% of us quite well; and we could have begun a careful process of extending care to the underserved in ways that would not degrade or damage the care enjoyed by the vast majority of Americans.
We could have, for example, lightened the load on our hospital emergency rooms (already mandated to take all comers without regard to patients’ means) by creating sliding-scale clinics financed by a combination of taxes and contributions. We could have accomplished a number of rational, incremental reforms.
But we did not. The well-meaning social engineers, (the “we-will-make-the-world-a-better-place” crowd) had achieved a fleeting state of control over both legislative chambers and the executive branch. With no time for reflection, no willingness to give due consideration to the constitution, no patience to consider the public fisc or the prudential requirements of wise policy, they gave us a measure that neither the president nor the members who voted on it were actually able to read, let alone study.
And now we are at the stage in which only the highest court in the land can restore the constitutional balance.
Pray that it is not too late.
[i] Dept. of Health and Human Services vs. Florida et al
[iii] And I must note the restraint that previous administrations have shown. For example, under Jimmie Carter, the 55 mile an hour speed limit was not imposed using the raw Commerce clause power; it was imposed as a condition attached to the receipt of federal highway moneys. As a result, states varied somewhat in enforcement policies. In one state with which I am particularly familiar, speeding tickets that were issued for exceeding 55 but under “the previously posted limit” were more lenient. In another example, national educational policy is not directly imposed on the states and their various educational institutions, but is attached as a condition to receiving federal aid. The arguments advanced by the current administration in favor of the insurance mandate represent a truly radical departure.
[iv] Credit for the main thrust of the argument goes to Virginia Attorney General Ken Cuccinelli, Duke University law professor Walter Dellinger, and Georgetown University law professor Randy Barnett.
[v] A coalition of 26 states opposes the administration’s position.