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April 6th, 2012

How The Constitution Lost Again

“This was a train wreck for the Obama administration,” CNN legal correspondent Jeffrey Toobin bemoaned after the U.S. Supreme Court heard oral arguments on the constitutionality of Obamacare’s individual mandate.  “This law looks like it’s going to be struck down.”  While that may be so, the constitutional victory will be largely symbolic and may actually speed the rise of socialized medicine in America.

Since 1942 the Supreme Court has held that the federal government has the authority to regulate purely local intrastate, non-commercial activity that might have some aggregate affect on interstate commerce, and no one asked the Court to overturn this unconstitutional precedent.  Instead, the opponents of Obamacare conceded that, under current precedent, Congress could socialize health care, they just went about it the wrong way.

Rather than challenge the Court’s most egregious precedents,1 opponents of the individual mandate sought to explain why a case such as Wickard v. Filburn “that holds that a farmer has engaged in interstate commerce when he feeds his own grain to his own cows cannot be read to allow Congress to impose a duty on individuals to pay a fine if they do not take out health care for their own protection.”

Their solution?  That, unlike the Court’s previous cases, “the mandate is not conditional upon anyone having taken an affirmative step…Roscoe Filburn was only subject to the Agricultural Adjustment Act because he chose to produce wheat for his dairy cows.  The mandate, on the other hand, does not require a similar predicate.  Someone else can be subject to the mandate even if they have done nothing at all.”

Conceding that Wickard was correctly decided, Paul Clement, the attorney for the opponents of Obamacare, opened his argument before the Court by stating that the “mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”

Taken with this argument, Justice Kennedy, widely assumed to be the swing vote, asked the government’s attorney whether it could “create commerce in order to regulate it?”  Minutes later he hinted that the individual mandate, by creating an “affirmative duty to go into commerce,” was “unprecedented” and a  “step beyond what our cases have allowed.”

Rather than arguing over whether the Constitution gives Congress the power to pass Obamacare, opponents of the law argued over whether or not this or that Supreme Court opinion gave Congress the power to pass the individual mandate.  Neither the justices nor the attorneys went back to first principles by analyzing the original public understanding of the Constitution.

As noted constitutional scholar Richard Epstein remarked last year, “What is so striking about these arguments [against Obamacare] is that none of them starts with the text of the Commerce Clause itself…How does anyone wrench Wickard v. Filburn out from a clause that says that ‘Congress shall have power . . .  To regulate commerce with foreign nations, among the several states, and with the Indian tribes.’  It beats me how a provision that is drafted to allow Congress the important power to deal with transportation, communication, and the shipment of goods across state lines, can be expanded to let it regulate any activity that affects commerce, even if done in a purely local setting.”

As Justice Thomas has previously warned, ”holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power…Federal power expands, but never contracts, with each new locution [by the Supreme Court].  The majority is not interpreting the Commerce Clause, but rewriting it.

Even if the Court strikes down the individual mandate, the majority will make no effort to limit or overturn its existing caselaw to return the federal government to some resemblance of one with limited, enumerated powers.  So while constitutionalists may win the battle over the mandate, they will lose the war.

Instead, the argument made by opponents of Obamacare is simply one of timing.  As the attorney for the government reasonably pointed out twice at oral arguments, “I think it’s common ground between us and the Respondents that this is an interstate market in which everybody participates.  And they agree that — that Congress could impose the insurance requirement at the point of sale.  And this is just a question of timing, and whether Congress’s – whether the necessary and proper authority gives Congress, because of the particular features of this market, the ability to impose the — the insurance, the need for insurance, the maintenance of insurance before you show up to get health care rather than at the moment you get up to show.”

In pressing opponents of the individual mandate about this, Justice Sotomayor asked, “Do you accept your -the [Solicitor] General’s position that you have conceded that Congress could say, if you’re going to consume health services, you have to pay by way of insurance?”  Without any hesitation, Paul Clement answered in the affirmative that “if you regulate the point of sale, you regulate commerce, that’s within Congress’s commerce power.”2

With this concession, challengers of Obamacare concede that, once an individual enters the market, they are subject to Congressional regulation.  For example, instead of impermissibly requiring individuals to buy health insurance before they enter the health care market, they agree that Supreme Court precedent correctly allows Congress to require individuals to buy health insurance at the time they need health care.

Additionally, Supreme Court precedent gives Congress the authority to dictate the type and manner of health insurance plans existing participants in the health care market must purchase.  Furthermore, the federal government could require existing health care participants to join a health club, eat vegetables, or get annual colonoscopies.

Remember IPAB?  The Independent Payment Advisory Board created under Obamacare to control medical costs (i.e., a death panel)?  No one has challenged its dubious constitutionality on the grounds that Congress lacks the authority to ration health care costs.  Rather, it is being challenged in court on the principle that Congress has no “constitutional power to delegate nearly unlimited legislative power to any federal executive branch agency.”  In short, the challengers concede that the federal government has the power but, as it is currently exercised, it violates the principle of separation of powers.

Similarly, legal challenges to Obama’s contraception mandate under Obamacare are based on the First Amendment’s protection of religious liberty rather than on Commerce Clause grounds.  The challenges concede that the Supreme Court’s unconstitutional precedent gives the federal government the authority to impose such a mandate; they only argue that, in this particular instance, it cannot be imposed on conscientious objectors.

By failing to relitigate existing Supreme Court precedent, challengers of the various provisions of Obamacare concede that the federal government has the power to pass the legislation, but argue only that it may have used the wrong method or violated a constitutional right.

Even if they win in court, therefore, it will do nothing to stop the implementation of socialized medicine in America by different means.  In all likelihood, it will only serve to speed it up, with those already suggesting the creation of a single payer system by simply expanding Medicare for everyone.

Justice Kennedy already signaled his approval of such an approach at oral arguments when he pointed out that Congress already has an alternative to the individual mandate by using “the tax power to raise revenue and to just have a national health service, single payer…In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.”3

The means may be different but the end will remain unchanged.  Socialized medicine by any other name is still socialized medicine. In striking the individual mandate but failing to overturn, at least in part, some of its most unconstitutional precedent, the Supreme Court will have accomplished little to restore a federal government of limited, enumerated powers.


1 While perhaps the best and only litigation strategy that had any chance of getting the case to the Supreme Court, once there neither lead counsel nor amici opposing the mandate used the opportunity to ask to ask the Court to reverse, at least in part, some of its precedents.

In a notable exchange later in the argument, Clement did not dispute Sotomayor’s assertion that Congress could require those who own automobiles to buy car insurance.  Later, Michael Carvin, another attorney representing those who oppose the mandate, conceded to Justice Breyer that the EPA could require those who buy a new car to buy one with an antipollution device installed.  He even agreed that the EPA could require existing car owners to install an antipollution device on their vehicles.  Carvin later told Justice Kagan that Congress could require new home buyers to buy mortgage insurance.

No limiting principle was ever articulated by either the justices or attorneys.  For instance, current Supreme Court precedent would allow Congress to mandate that new car buyers purchase only vehicles made by Detroit’s Big 3 automakers to help domestic sales.  Or mandate in 2008-09 that new car buyers had to purchase vehicles from the Big 3 minus Ford in order to keep them from insolvency.   Or that existing car buyers had to participate in cash-for-clunkers in order to reduce environmental pollutants.  Because the Court’s unconstitutional precedents went unchallenged, these potential individual mandates on existing market participants will remain permissible even if Obamacare’s individual mandate on non-market participants is struck down.

Opponents of the individual mandate apparently agreed with this assessment.  When asked by Justice Sotomayor whether “Congress can tax everybody and set up a public health care system,” Carvin replied in the affirmative without hesitation.


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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at

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