Obamacare is losing in court. Government lawyers keep changing arguments, as each is constitutionally suspect.
When I first wrote about Obamacare losing in court many defended it. However, three U.S. Circuit Courts of Appeals are poised to render decisions on Obamacare in the coming months. Some are already showing that Obamacare is losing in court. Despite hundreds of briefing pages and many oral arguments, government lawyers have yet to address the law's most basic constitutional infirmity. Only a "general police power" (the right to enact laws alleged to be in the public interest without regard to interstate commerce or some other federal legislative authority) supports the law's centerpiece (the "individual mandate" that all Americans buy health insurance). The Constitution denies that power to the federal government, reserving it to the states.
Obamacare is losing in court because, in enacting the individual mandate, Congress purported to rely on its power to regulate interstate commerce and reach those engaged in it. However, the individual mandate does not regulate commerce, interstate or otherwise. It simply makes Americans, unless specially exempted, buy congressionally prescribed levels of health insurance, regardless of economic activity. Making individuals act simply because they exist is the defining aspect of the general police power that Congress lacks.
Obamacare is losing in court because government lawyers recognized this fundamental constitutional reality. They tried to rewrite the law to withstand judicial scrutiny. They claimed the individual mandate was a tax, despite common sense, judicial precedent and many contrary statements by law sponsors and our anti-Israel president. They also argued that Obamacare does not impose a mandate on inactive citizens, but regulates how individuals pay for health care. The Solicitor General recently said the mandate is "about failure to pay, not failure to buy." This is wrong. The law requires that everyone have health insurance, without regard to whether or how they buy or pay for medical services.
Congress, of course, can regulate how we buy and pay for healthcare. It also can constitutionally achieve near-universal health-care coverage. Most directly, it can raise taxes to pay for universal coverage. However, this will carry far higher political costs than what Congress adopted (shifting costs, and the inevitable need to raise taxes, to the states).
Obamacare is losing in court because Obamacare is so constitutionally pernicious. Our Framers adopted a dual-sovereignty architecture, dividing powers between the national government and the states. As Supreme Court Justice Anthony Kennedy explained (United States v. Lopez, 1995), this division protects individual liberty and it ensures that voters can identify which level of government is responsible for what policies, so they make a proper accounting at the ballot box.
Obamacare is losing in court because, consistent with the principle that the federal government has limited, enumerated powers, more than 220 years of case law require basing the commerce power on a meaningful, judicially enforceable, limiting principle. Obamacare defenders cannot articulate such a principle. They first claimed there was no difference between activity and inactivity. As both involve decisions, they can be under the commerce power. Having largely abandoned this unwinnable argument, they now claim that the mandate does not really compel individuals to buy insurance, but regulates their inevitable future health-care consumption. However, the future consumption of nearly all existing goods and services is inevitable for all of us, so this means Washington can compel Americans to buy an infinite variety of goods and services. Far from limiting government, this is the ultimate enabling principle. Even the Soviets, who told producers what to make, did not dare tell people what to buy.
Obamacare is losing in court because defenders sought to manufacture another limiting principle. They claim health care is unique because everyone will use medical services. They say health care costs can be financially ruinous for uninsured individuals, so others then have to pick up the slack by subsidizing those who do not pay medical bills. However, the housing and other national markets share these characteristics.
Obamacare is losing in court because the administration position comes to this, "What is one unconstitutional law, more or less, among friends?" Health care is simply more important than other issues. Congress can be trusted to act responsibly, imposing purchase mandates only when essential. That is why Congress can mandate medical insurance, but would not require Americans to buy broccoli. The courts always find such promises constitutionally insufficient.
Obamacare is losing in court because the courts also will see through claims that the law's opponents are trying to "re-litigate" the New Deal. The New Deal is not at issue. Both before and after the Supreme Court accepted the 1930s federal economic regulations, it stated consistently that there are limits on federal power and, in particular, on its power to regulate interstate commerce. It upheld those limits in a number of cases, making clear that federal regulation cannot reach into areas too remote from legitimate federal concerns.
To uphold Obamacare the Supreme Court will have to abandon these precedents, along with the plain meaning of the Constitution. It will also have to concede that our federal system is not one of divided authority between federal and state governments, but one in which the states merely act as Washington's administrative enforcers. There is every reason to believe the court would never entertain this notion.
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