Wednesday, November 16, 2011

ObamaCare Goes to Court: A historic showdown on the constitutional limits of federal power

Category:Federal courthouses of the United StatesImage via WikipediaCommerce power under the Constitution meant the power to regulate, meaning in the English language of the day, "to make regular" the rules under which the various states would conduct trade and commerce. It was NEVER intended to be a huge federal entitlement to control all US and individual commercial liberties. The constitution, after all, was adopted to redress the failings of the articles of confederation, under which the various states had placed tariffs on each other, and adopted differing currencies.
This was so clearly the intent of the founders that it cannot be disputed. Only ignored.
Well, not this time. Obama care is such a monstrous expansion of federal power, that were it to be upheld, there would no longer be ANY limitation on what the federal government could command the individual to do, as this article makes clear.
For these reasons, the US Supreme Court will overturn Obama care this spring, and that outcome is not seriously in doubt...T
The "constitutionality" of the Obama health care law, Harvard Law School's
Laurence Tribe wrote in the New York Times earlier this year, "is open and
shut," adding that the challenge against it is "a political objection in legal
In announcing yesterday that it will consider the law's constitutionality,
the Supreme Court said it would give an historic five-and-a-half hours to oral
arguments. Perhaps by his Cambridge standard, Mr. Tribe thinks the nine Justices
are a little slow. We prefer to think this shows the Court recognizes the
seriousness of the constitutional issues involved. It makes those who cavalierly
dismissed the very idea of a challenge two years ago look, well,
constitutionally challenged.

Other critics of the constitutional case have suggested that its outcome
before the High Court will be a wholly "political" decision, a repeat of
Bush v. Gore. We trust the justices won't fall for this slur against
their reputation.

The issue at the heart of the ObamaCare challenge brought by 26 states and the National Federation of Independent Business is whether the federal government has the constitutional authority, under the Commerce Clause, to order everyone in the United States to purchase health insurance—the so-called "individual mandate." If that is so, critics argue, then there is no limit to what commercial activity the government can command. And make no mistake: Future governments would order specific "commercial" activity under this authority.

The latest spin to be directed at the constitutional challenges is that conservative judges on the lower courts are divided. In fact, it isn't just conservatives who are divided over the law's constitutionality. One of the appellate judges on the 11th Circuit in Atlanta who overturned the law in the case the High Court accepted is a Democrat. Open and shut? Not quite.

Among the conservative opinions on behalf of ObamaCare in the lower courts, the two that we'd call the most idiosyncratic and misguided were issued separately by Judges Laurence Silberman and Jeffrey Sutton.

Judge Silberman, in an opinion joined by Judge Harry Edwards, acknowledges that Justice's lawyers defending the ObamaCare individual mandate couldn't cite "any doctrinal limiting principles" to this new, expansive reading of the Commerce Clause. But somehow Judge Silberman found a justification anyway in a 1942 Court precedent involving limits on wheat-growing for personal consumption, because these personal decisions ultimately might affect interstate commerce.

As a member of the D.C. Circuit Court of Appeals, Judge Silberman may have felt he was bound by that precedent as he interprets it. But the Supreme Court can revisit such precedents, or their misapplication, especially in light of its own more recent attempts to put some limits on federal government power under the Commerce Clause.

Judge Silberman also explicitly notes that an affirmation of such a broad Commerce Clause interpretation could become a "federal police power" to the disadvantage of the states—though he seems surprisingly unconcerned about it.

In a pro-ObamaCare decision in July, Judge Sutton abstracted the law's mandate in a way that allowed him to find it constitutional, rather than address the mandate's provisions as they are written into the law. But Judge Sutton did address the stakes in the case with unmistakable clarity: The High Court, he wrote, "either should stop saying that a meaningful limit on Congress's commerce powers exists or prove that it is so."

The Obama Administration's answer to the law's multiple discrepancies, contradictions and nuances has been to go all-in on the argument that overturning the mandate will overturn the entire law. It's true that without the mandate the law is unlikely to work, but the law is such a Rube Goldberg contraption that it won't work with the mandate.

We'd like to see the entire law overturned, but the mandate deserves its own constitutional judgment. It shouldn't be found constitutional merely because Justice's lawyers say its excision would ruin the entire law. Congress can't drop unconstitutional provisions into laws hoping that the Court will bless them simply because not doing so would invalidate the larger law.

Perhaps the most intriguing nugget in the Supreme Court's announcement is that it will take arguments on the law's Medicaid provisions. Intriguing because the Court was under no obligation to touch the law's Medicaid piece, which none of the lower courts invalidated. ObamaCare vastly expands Medicaid to the middle class and hammers hard any state that refuses to comply. It appears some of the Justices want to hear someone justify this federal aggrandizement as well.

The Court itself deserves credit for deciding to take this case this year, even though it probably means issuing a decision in an election year.

The law is already speeding the ruin of U.S. health care, increasing costs and reducing competition. It is easily the most unpopular major reform in decades and the most unpopular entitlement expansion ever. More broadly, it is impossible to duck the matter of whether this law's powers would stop at health care, as its backers insist, or whether it will be merely the first wave of other such mandated enforcements, if the federal government is given the power to compel individuals to participate in commerce, rather than merely regulate it.

These are issues involving the nation's core understanding of the citizenry's relationship to its government. Voters should have the chance to include the Court's verdict on the law when they go to the polls in 2012.
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