Before you eat another french fry, think about this:
Tough love, you could say. I’m gonna miss my fries.
Obamacare before the Supreme Court: “The Emperor Has No Clothes!”
March 29, 2012 By 2 Comments
Courtroom illustration shows Deputy Solicitor General Edwin Kneedler speaking to Justice Antonin Scalia and Chief Justice John Roberts of the U.S. Supreme Court in Washington
In a case of “the Emperor has no clothes,” the justices played the part of the skeptic to the Obama Administration’s protestations of Obamacare’s constitutionality. With the oral arguments on constitutionality of the Affordable Care Act over, let’s take a look back at the reactions to the arguments:
First, the crux of the argument? That the government cannot regulate “inactivity,” an angle that has been pushed by Georgetown professor Randy Barnett:
On Monday, as the court began three days of arguments, questioning by the nine justices suggested they were ready to review the law now rather than wait until it has fully kicked in. That lays the groundwork for arguments for the challenge championed by Professor Barnett: that Congress’s power to set rules for commerce does not extend to regulating “inactivity,” like choosing not to be insured.
Apparently, the Supreme Court is buying the argument, much to the Obama Administration’s dismay.
In “Obama’s Supreme Court Disaster,” Adam Serwer says that the government’s lawyer Donald Verilli should be glad that the Supreme Court doesn’t allow cameras in the court room; his performance was that bad.
Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s—and one that may well have doubled as its eulogy.
Investors Business Daily feels bad for Verilli, but doesn’t blame him. The Affordable Care Act just isn’t constitutional, the editorials says.
We almost felt sorry for Donald Verrilli, the solicitor general who had to defend the constitutionally indefensible. Over three days of intense interrogation by nine Supreme Court justices, Verrilli failed to muster a single coherent, reasonable argument in support of the ObamaCare law’s constitutionality.
Instead, his shambling, unfocused talking points left the government case in disarray — underscoring what a poorly conceived, badly designed law this was in the first place, and why it must be overturned.
Some think that the disasterous arguments have put the Obama Administration on the defensive over the heart of Obamacare, the individual mandate on Americans to buy healthcare insurance.
That’s a purely political argument to a constitutional question. [White House Press deputy press secretary] Earnest offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.
A week ago, ACA supporters were looking forward to a triumph. Now, they’re counting their losses. What happened?
Perhaps the most telling moment was during a question from Justice Kennedy. Ilya Shapiro describes it:
By this point the government’s head appellate advocate was on his heels, dodging increasingly skeptical queries, until Justice Kennedy delivered what in poker would be seen as the key “tell”:
JUSTICE KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?
Although you can’t hear it on the audio recording, the audience gasped.
Just like that, the headlines started changing.
The law isn’t dead, yet though, say supporters.
As Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. While the conservative justices expressed considerable reservations about the law’s scope, Justice Kennedy, the key swing vote, also noted, near the very end of the argument, that the unique context of the healthcare market may be sufficient to validate the “individual mandate.” The biggest challenge the government has faced in defending the law has been the articulation of a limiting principle, and by argument’s end it seemed that Justice Kennedy might have heard one that he could sign on to. If he does vote to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.
On the other hand, Dr. Milton Wolf in the Washington Times is more than sanguine about the demise of Obamacare. He’s predicting complete overturn, and, if not, the downfall of America.
The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.
Obamacare’s costs are exploding in the land where budgets already have burst. The $900 billion bargain-basement 10-year cost estimate that Mr. Obama promised for his overhaul recently ballooned to $1.8 trillion. Of course, these are still just estimates, and considering that the government underestimatedMedicare’s cost by a factor of 10, who really knows how massive the final price tag will be?
Welcome to the United States of Greece, where our $15.6 trillion national debt has surpassed the size of our total economy.
Which begs the question: if not Obamacare, what? Healthcare reform is clearly necessary. In the Chicago Tribune,
“One way or another, Congress will have to revisit it in toto,” Justice Antonin Scalia said of the health law.
One way or another.
That should be a clarion call in Washington. The prospect that the court will strike down all or part of the law known as Obamacare hands political leaders of both parties a formidable challenge — and a vast opportunity: a second chance to get health care reform right.
On that point, James Pethokoukis asks “What will Republicans do if the Supreme Court kills healthcare” reform and suggests that perhaps combining Rep. Paul Ryan’s plan (block grants to states for Medicare0 with future president Mitt Romney’s plan (known as the “Hubbard Plan“) might be workable.
The Hubbard Plan has five elements: 1) allow all Americans to deduct from income taxes all their healthcare expenditures—premiums, employee contributions, out-of-pocket costs, etc.; 2) deregulate insurance markets to foster nationwide, portable health insurance; c) making health information more available; d) control anti-competitive behavior such as hospital mergers; e) malpractice reform.
In the meantime, stay tuned. The law hasn’t been overturned, yet, and still may stand. While you’re waiting, jog on over to the Sweaty Federalist for his snark on some of the arguments being made to uphold the law.
[AEI] [Glenn Hubbard] [Mother Jones] [Washington Times] [Investors Business Daily] [National Journal] [The Nation] [Chicago Tribune] [New York Times]
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Obamacare Proponents Brace for Supreme Court Smackdown
March 27, 2012 By 6 Comments
Jason Kane is a recovering rock star and an attorney in Salt Lake County. He is an occasional contributor to Publius Online.
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In the days leading up to the Supreme Court oral arguments on the constitutionality of President’s Obama’s signature health care law, there was no end to the media speculation about which conservative leaning justice(s) would leave the dark-side and vote to uphold Obamacare. We were treated to a barrage of statistics touting the popularity of Obamacare, reminders that Republicans had supported mandates in the past and other specious arguments that have no bearing on the constitutionality of the law. Self-assured Progressives, it seemed, had little concern that socialized medicine was in any danger.
After one day of arguments that didn’t go particularly well for the government, the Obamacare cheerleaders seem to be in full back-peddle mode. One blog post at the Daily Beast is especially entertaining, arguing that if the individual health insurance mandate is struck down, it will actually be a boon to Obama’s reelection. Obama would no longer have to defend the controversial law and be free to run on his other spectacular achievements, like killing Bin Laden and… killing Bin Laden. This line of thinking, of course, flies in the face of common sense and everything we know about politics. Losing is bad for business and tends to embolden the opposition. In this particular election year, it also happens to help rid Romney of much of the health care baggage that continues to poison the well with many Republicans.
To be sure, I think it is premature to start dancing on the grave of Obamacare. But the tough skepticism exhibited by Justice Kennedy, the left’s only hope in a 5-4 decision, gives Obamacare proponents good reason for concern. We cannot foretell the outcome based on oral arguments alone, though they do seem to hold particular weight in this case. At the very least though, the seeds of self-doubt have been sewn among the Progressives. We should allow ourselves savor this rare phenomenon while it lasts.
Related articles
- Key Supreme Court Justices Express Skepticism Over Constitutionality Of Health Care Law (jonathanturley.org)
- Are There Five Votes to Uphold ObamaCare’s Mandate? (reason.com)
- The Audio From Today’s Supreme Court Hearing on Obamacare (healthcarebs.com)
- Is the Supreme Court Skeptical of ObamaCare’s Insurance Mandate? (reason.com)
- People Are Saying That Obama’s Healthcare Law Got Massacred At The Supreme Court Today (tarpon.wordpress.com)
Our Healthcare System: Could Reforming Medicaid Free Up Money For Education?
February 6, 2012 By Leave a Comment
Just because conservatives, myself included, believe (quite rightly) that the individual mandate portion of the Patient Protection and Affordable Care Act is completely outside of the scope of what Congress is constitutionally permitted to regulate, it doesn’t mean that we also believe that nothing should be done to improve our health care system.
Indeed, what was once the best healthcare in the world has become expensive, byzantine, and difficult to understand. We could argue about the reasons–repeated government interventions in the healthcare market going back several decades, the rising cost of living, an exploding Baby Boomer generation, longer life spans, and so on–but the reality is: it’s more expensive, and it’s hurting all of us, especially those on the lower end of the economic spectrum.
We’ve all had the experience of dealing with the logothetes of one insurance company or another, of hospitals, or Medicaid and Medicare administration. It’s almost never easy to find an answer, and it’s a daunting and intimidating process.
I can’t help but pause here and wish that the next time I call I could find a helpful “Mr. Incredible”-like insurance agent ready to help me.
Gilbert Huph: I’m not happy, Bob. Not happy. Ask me why.
Bob (aka “Mr Incredible”): Okay. Why?Gilbert Huph: Why what? Be specific, Bob.
Bob: Why are you unhappy?
Gilbert Huph: Your customers make me unhappy.
Bob: Why? Have you gotten complaints?
Gilbert Huph: Complaints I can handle. What I can’t handle is your customers’ inexplicable knowledge of Insuricare’s inner workings. They’re experts! Experts, Bob! Exploiting every loophole! Dodging every obstacle! They’re penetrating the bureaucracy!
If you’ve not had to deal with said bureaucracy, stay tuned. You turn will come. Mine came when on Christmas Eve a year ago, we found ourselves in possession of a two and a half year-old with a small metal bead stuck up her nose. You know the kind–they’re like the bearings in a skateboard.
We were visiting family in a different state, out of our “network,” and the doctor’s office we ambushed fifteen minutes to closing lacked the tools necessary to remove the bead. Kindly, the office called around to each clinic in the area, but again, no luck. Every office was either closed or lacked the right tool.
Our next stop was, you can guess, the Emergency Room. To make a long trip into a short story, let me summarize: two hours later, we waited for all of twenty seconds in a small room while a doctor inserted a small tool into our daughter’s nose and removed the metal bead with almost no pain or blood. It was just that easy.
We were half way to the car in the parking lot before we realized that not only had we never been asked our billing information, but we had also been told “oh, well get it later” every time we offered to give it.
My wife returned to give our billing address to the hospital, asking at the same time what the damage (to our checking account) would be. Not only did no one know, but they didn’t know how to find out. Several weeks would pass before we got the bill. Would you believe it was upwards of a thousand dollars?
For all of the twenty seconds it took the doctor to remove the bead? If you’re shocked, it’s with good reason. Don’t get me wrong: I don’t begrudge the doctor his skills, his availability in the ER on Christmas Eve, or his costs (which include, no doubt , insurance costs and medical school). In fact, I laud him for it.
No, what I begrudge is all of the other factors that went into creating the bill. Despite our effort that same night to pay the bill (at that point, we actually had cash and a check book), the hospital accountants (see the above mentioned logothetes) had to perform an analysis that was not limited to just the doctor’s time, insurance, and costs…
…or did it? What were those costs? All of the people who came to the ER for routine care they couldn’t afford to take to regular clinic? That the hospital expected to be picked up through Medicare payments? When it came down to it, it really had little to do with the value of the care or the additional costs caused, largely, by distortions to the market from government intervention.
Image via Wikipedia
Which brings us back to the Affordable Care Act, or Obamacare. Is it the wrong way to deal with the healthcare problems? Perhaps. Is it constitutional? Not likely. But being both poor policy and unconstitutional does not mean that there are not other ways to address healthcare’s problems.
In today’s Salt Lake Tribune, Pat Jarvis, noting that perhaps it wouldn’t be so hard to fund education if we could save costs in places like Medicaid. “We waste $1 trillion annually on inefficient and poor quality care,” said Jarvis in the Salt Lake Tribune. ”One of the costs of that waste, much of which comes from tax revenues to support public health programs like Medicaid, is the lack of adequate money for public education. That is particularly true in Utah, where we have the lowest per-pupil expenditure in the nation.”
Logothetes of the world begin to quiver in fear. And pay their union dues.
Jarvis gives seven ideas for reforming our healthcare system on a state wide basis. Without levying a direct opinion on whether they would work, I think it at least bears observation that they all deal with reallocating incentives to change how healthcare is managed.
Let’s begin with Medicaid. Here is a list of seven reforms that would save hundreds of millions of taxpayer dollars over the next 10 years:
1) Millions of Utah tax dollars are being spent on administrative expenses for Medicaid managed care. This program can be eliminated without any impact on essential services to Utah’s medically needy and the health care providers that serve them.
2) Millions of dollars are wasted annually on excessively high pharmaceutical costs because the already existing Medicaid preferred drug list is too limited in its application in Utah.
3) U.S. health care financing, including Medicaid, routinely pays for inappropriate care. Establish a Medicaid Benefit Commission this year with authority to identify commonly performed medical/surgical interventions which have little or no clinical science behind them. Second, adjudicate medical malpractice claims for Medicaid beneficiaries without punitive damages or jury trials.
4) Reduce obstetrical and newborn care costs paid by Medicaid through rewarding high performing hospital practices, which reduce elective inductions and the related unnecessarily higher rates of c-sections and NBICU admissions. And increase eligibility for post-natal contraceptive services for women delivering babies financed through Medicaid.
5) Reduce use of long term care services through better financed home health care delivery.
6) Develop improved quality care strategies for high cost Medicaid financed chronic health problems.
7) Develop a statewide hospital injury prevention program.
Could this work? There’s no doubt that the motivation to reform entitlement programs like Medicaid seems to come primarily from the right and the large, silent majority in the middle. Democrats, content to ride on the life or death of Obamacare before the Supreme Court, have repeatedly avoided discussion about the long and short term costs of failure to reform Medicaid. Even long term Republicans in Congress have, at least until recently, failed to lead out on entitlement reform.
If there was ever a time to begin assessment of our priorities to find a way to create a sustainable healthcare system accessible to all, now is that time. The reality is that these options are fast becoming non-negotiable, and the window of time to fix them is becoming smaller. It’s time to look at and pass substantive reforms.
APROPOS: If you’re interested in “the rest of the story,” I spent many a day calling and negotiating with the hospital and the ER. Would you know that the more they hear from you, the more specific the bills become? And the more specific they get, the better they can actually assess the real cost of the procedure? At the end of the day (which day was sometime in May, almost five months after our two-year old stuck a metal bead up her nostril), we ended up paying a fraction of the original bill, yet something that I was glad to pay in appreciation for getting that bead out of my daughter’s nose. If only it hadn’t taken so long to get a straight answer from the bureaucracy.
For more on healthcare and entitlement reform, see also my posts on “The Human Cost of Ignoring Medicaid Reform” and “Pension Reform: What’s Your Plan?”
Related articles
- Doctor coalition challenges the AMA and the White House on Obamacare | Washington Times Communities (gds44.wordpress.com)
- January 2012 – Amicus Brief (SCOTUS) – In Support of the State of Florida, et al. Challenge of the Affordable Care Act (Medicaid Issue) (jamesmadison.org)
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“Unconstitutional,” says the 11th Circuit.
August 12, 2011 By Leave a Comment
“Unconstitutional”
The news making its way through the legal blogosphere, and the online news outlets, is that the 11th Circuit has ruled the individual mandate part of the Patient Protection and Affordable Care Act (the “Act”) is unconstitutional.
Let me underscore that: only the individual mandate was found unconstitutional. The rest of the law has been, for now, left untouched.
The Washington Post called it one of the “most significant legal setbacks to the Obama administration’s health-care overhaul.”
If you’re short on time, read at least the excerpts of the 2-1 decision (of a very lengthy opinion) over at the Volokh Conspiracy. In short the Act is:
[...] the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.
Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.
Etc, etc…and, here’s the part the right will love:
This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “
Too bad this didn’t come out yesterday. The Iowa Republican debate would have been that much more juicy with the ruling hanging in the air, even with the Supreme Court still in the Act’s future.
If you have more time, here are a few more commentaries you might look at:
From Utah Political Summary’s Curt Bentley:
One of the more odd things about the majority opinion — at least in my humble opinion — is its use of an overinclusiveness argument. Over/underinclusiveness is a consideration in individual rights cases, but, in my opinion, has no real role to play when it comes to evaluating a Congressional action under the Commerce Clause. The over/underinclusiveness analysis is designed to get at the sincerity of a legislature’s expressed motivations. For example, if a legislature regulates more broadly (or narrowly) than necessary to solve a particular problem, one can infer that it may be dislike for a certain group, rather than a desire to solve the stated problem, that motivates the legislature action.
Jonathan Turley, expressing concerns about federalism issue the Act affects opined that
I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.
In other words, if the feds can do this, what can’t they do? (And, I would add, what does that mean for the 10th Amendment?
Ilya Somin, also at Volokh, noted that this wasn’t a partisan decision:
Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.
Jonathan Adler says “Hear, hear!”
Related articles
- Appeals Court Rules Portion of Obama Health Care Bill Unconstitutional (abcnews.go.com)
- 11th Circuit Strikes Down Individual Mandate (outsidethebeltway.com)
- Unconstitutional: 11th Circuit Rules Against the Health Care Mandate (swampland.time.com)
- 11th Circuit Rules Health Care Individual Mandate Unconstitutional (swampland.time.com)
- Appeals court rules healthcare law’s ‘individual mandate’ unconstitutional (thehill.com)
Here are the facts: you decide what they mean.
June 30, 2011 By 3 Comments
From the Washington Post, a comparison of budget proposals and their effect on US debt.
From the Washington Post, a comparison of budget proposals and their effect on the US deficit.
Next battle in the Affordable Healthcare Act drama? Administrative Rulemaking.
June 28, 2011 By Leave a Comment
If you thought the big fight over health care reform was last year with the passage of the Affordable Care Act (the “ACA”), or in the courts over its constitutionality, then think again.
Something every bit as big and as important is coming, yet.
Don’t get me wrong. The passage of the ACA was a serious battle and the law will still end up before the Supreme Court before all is done. But now that the law has been passed, and unless the Supremes decide it’s unconstitutional, there looms another battle, every bit as important and perhaps even more so. [Read more...]
“Do what I say (pass my budget), not what I do (ignore your budget).”
April 5, 2011 By 4 Comments
President Barack Obama, Adult-in-Chief. Image by DonkeyHotey via Flickr
IN CASE YOU MISSED IT…
Our federal government is on the verge of shutting down. And President Obama wants Congressional Republicans to do what he says (pass his budget), not what he does (ignore their budget).
The United States government doesn’t have a budget for fiscal year 2011, yet. If it doesn’t pass one by Friday, the government will shut down. This means, as others have pointed out, that we may see something like what happened in 1995 and 1996:
[I]t actually cost the government money in back wages, lost revenue from shut-down national parks and the local economies and businesses surrounding those parks. Not all government workers go on a mandatory vacation, either. Essential staff still stay on duty – FBI and TSA workers, VA hospitals and military bases stay open, as would the US Postal Service, the prez and his employees and all members of Congress.
So, naturally,with a shutdown threatening due to Congress’ and the President’s inability to work out a compromise, what do our elected leaders do? Get down to the thumb tacks, pound out a compromise that moves our country on the path to get out of debt, and works to lighten the load on Americans?
Nope. They trade insults.
President Barack Obama on Tuesday called on congressional leaders – especially Speaker John Boehner (R-Ohio) – to act like “grown-ups” and avert a government shutdown after they made no apparent progress in reaching a budget agreement at a White House meeting earlier in the day.
In response, Congressional Republicans said that they were going to take their toys and go home…
Oh, wait. No they didn’t. Rather, they released a plan to cut $6.2 trillion out of the budget over the next four years, including reducing the deficit by $4.4 trillion, a number three times the Administration’s (and, consequently, the amount that the Administration has added to the bottom line over the last few years).
Naturally, with Rep.Paul Ryan wonkishly talking policy and throwing around statistics, numbers, and budgets that save money, maintain retirement benefits, decrease our federal deficit, and, well, make sense, an insult was the best the President could come up with on the spur of the moment. After all, the upstart Congressman from Wisconsin is making him look bad.
Ironically, Rep. Ryan’s plan isn’t even considered to be that great. It’s just better than the President’s.
Politics is the realm of the possible, blah blah. Only in a government situation where we’re facing a shutdown on Friday and a debt limit squeeze around the same time – after a decade of completely bipartisan raids on fiscal sanity – can Ryan’s plan be considered the realistic plan.
It’s just better than the alternative.
From there, and by “there” I mean “a plan that cuts the deficit and salvages the future for our children,” the President decided to pull out the big guns: he accused the Republicans of partisanship because they want to include in the budget cuts cutting off funding for a few of the Golden Calves of the political left (Planned Parenthood, EPA, etc).
We can debate abortion and environmental regulation later. Right now, if we don’t get our fiscal house in order, it may not matter whether Planned Parenthood and the EPA keep federal handouts or funding, because entitlements are going to take over the budget completely.
MEANWHILE, in other news, the adults are busy coordinating President Obama’s reelection campaign…
Related articles
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The Commerce Clause argument in Virginia v. Sebelius, among others
December 14, 2010 By 9 Comments
Yesterday, the headlines shouted that individual mandate of the Affordable Health Care for America Act (let’s just call it “the Act” for short) was found unconstitutional by a federal court in Virginia. (see my short post on it here) Partisan critics of the ruling were quick to point out that there have already been two cases upholding it; partisan supporters were just as quick to note that this is the first substantial ruling on the act.
After a brief reading of the opinion, here are a few quotes from it and a couple of thoughts:
The Obama Administration‘s arguments in support the Act fall can be boiled down to this: Congress was within its powers to pass the Act because it acted under its power to regulate interstate commerce. To pick that apart, the Administration is arguing that Congress has the right to regulate activities that in the aggregate “substantially affect” interstate commerce. The Administration is relying upon aggregation theory, says Judge Hudson:
“…which is conceptually based on hypothesis that the sum of individual decisions to participate or not in the health insurance market has a critical collective effect on interstate commerce.”
In other words, each of us make enough decisions on health care that all taken together it is enough to affect interstate commerce. Under the Commerce Clause argument, the Minimum Essential Coverage Provision–what is more commonly known as the “individual mandate“– is necessary to make sure that the program of reforms in other areas work. In essence, if not everyone is paying into the system, then there won’t be enough people paying in to support the sick and poor that cannot pay for the benefits of health care. The dysfunctional system cannot be reformed if every person does not participate because, well, to put it simply–it’ll cost too much. So, to sum up the argument, since Congress has the power to regulate healthcare under the Commerce Clause, it also has the power under the Necessary and Proper Clause to make the regulations necessary.
Judge Hudson notes that although the Necessary and Proper Clause “vests Congress with broad authority to exercise means [...] to implement legislation, it is not without limitation.” This is an interesting, and perhaps understated commentary, on what many, including Speaker Pelosi, see as the definition of the Necessary and Proper Clause. It is an unenumerated power, but there are still limits. The means to accomplish the end must be “rationally related to the implementation of a constitutionallyenumerated power, but it must not violate an independent constitutional prohibition.” And here is the crux of the Virginia assault on the Act; it is a violation that “offends a fundamental restriction” on the Commerce Clause powers.
Central to the Commerce Clause is that it relates to economic activity. Can the government compel an unwilling person to perform an involuntary activity? Previous cases that the Administration cited dealt with individuals who grew wheat or cannabis and thereby voluntarily inserted themselves in the stream of interstate commerce. Here, however, the individual mandate compels a person to do an involuntary act, buy health insurance, and thereby become subject to the Commerce Clause. Because this goes beyond the bounds of the Commerce Clause, Congress is outside of its ability to use the Necessary and Proper powers to force the purchase. Congress can use its authority to pass constitutional laws; outside those bounds its powers are “bridled.” Quoting Chief Justice Marshall,
[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.
And thereby is why Judge Hudson ruled the individual mandate of the Act unconstitutional. As laudable as were the intentions of Congress in passing the Act, “the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers. And, my favorite quote: “Congressional findings, no matter how extensive, are insufficient to enlarge the Commerce Clause powers of Congress.”
What are those boundaries? Judge Hudson cites case law that limits Congressional powers under the Commerce Clause to subject matter that is economic in nature and voluntary activity. However, despite arguments by the Administration that everyone will at some point in their life need healthcare of some sort, this was the bridge too far for the Judge.
Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individuals to involuntarily enter the stream of commerce by purchasing a commodity in the private market.
Because it is not voluntary, the government cannot require individuals to make a purchase, to participate in the market. Ironically, this seems to be the very lynch pin upon which the entire scheme relies–without participation, voluntary or otherwise, of healthy individuals paying into healthcare, the government will be unable to pay for the costs of covering the poor and sick.
Interestingly, critics are attacking Judge Hudson’s interpretation of the Necessary and Proper Clause powers. See their discussion here. Others suggest that Judge Hudson is writing for Justice Scalia, and that it is a better opinion than the critics are giving him credit for. “Nonetheless, once read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.”
There are other arguments in the case, including a tax argument that Judge Hudson calls “simplistic.” (He also refers to the precedent it cites as “dicta,” a slap at the value of the authority the Administration cites). I thought the Commerce Clause argument, however, was the most interesting, not to mention the most important.
A last and important element of the opinion is that of the severability of the individual mandate clause from the rest of the Act. In other words: can the rest of the Act survive even though the individual mandate is unconstitutional? In this case, because it is difficult for the court to determine whether Congress intended that the rest of the Act to survive the invalidity of any single clause, the Judge ruled only on the section (1501 in this case, if you were wondering) is invalid and the rest of the Act, as it is currently unchallenged, survives.
Read the opinion here.
Related articles
- Federal judge rules mandatory health coverage unconstitutional (lawafterthebar.wordpress.com)
- Further Thoughts on the Virginia Health Care Ruling and the Necessary and Proper Clause (volokh.com)
- ObamaCare Loses in Court (online.wsj.com)
- Mandatory Health Care Provision Struck Down As Unconstitutional (jonathanturley.org)
- The Crucial Role of Choice in Henry Hudson’s Opinion (reason.com)
- Obamacare Individual Mandate Struck Down (pajamasmedia.com)
