This is good news because the sooner the better. The buy-insurance aspect of the law will come into force pretty soon and if Congress has to change the law in this regard, they will need time – especially in the current climate.
The subject is both momentous and fascinating. For the average Joe, the law seems necessary and correct. Everybody who is sick or injured must be treated so everybody should save for this eventuality in the form of buying insurance. The irresponsible just aren’t going to do what’s right unless we make a law and force them. In the past, I argued for just such an approach – we make people buy auto insurance, I reasoned.
But after that, I read the Constitution and realized that the Feds making people buy insurance is flatly unConstitutional. And further, making an exception for healthcare would likely be transformational for American democracy. That idea attacks the foundations of our government and American exceptionalism. No wonder other nations chose the national healthcare route and that many wanted that here – that would avoid the Constitutional issues which almost certainly will go against this aspect of Obamacare.
The amateur explanation of the Constitutional issue goes like this:
The federal government’s powers are limited specifically to the “Enumerated Powers” listed in Article 1, Section 8 of the Constitution of the United States.
Any power not enumerated there belongs to the states and there is no mention of forcing people to buy stuff and no mention of a power to penalize people for not buying stuff. [You have to buy car insurance only if you insist on driving a car and that requirement is set by the states.]
However, Section 8 authorizes that “Congress shall have power To … provide for the … general Welfare of the United States …” and contains the “Commerce Clause” which states, “The Congress shall have Power [...] To regulate Commerce … among the several States …”
So, one side says making people buy health insurance is good for everyone – nobody sensible disagrees with that – therefore, general welfare, no Constitutional problem.
The other side says: but wait. Excellent judges who have found Obamacare Constitutional have raised the same objections as those who are against it: If the Commerce Clause can be stretched in this way, what are the limits to Federal power?
· Would it be unconstitutional to require people to buy broccoli? Or fine people who smoke cigarettes and eat cheeseburgers?
· Could people making more than $500,000 be required to buy cars from General Motors to keep it in business?
· Can we force people to put money into retirement accounts to replace or supplement Social Security?”
· How about a law mandating that parents purchase private college savings accounts?
Judges on both sides of the issue are openly concerned about the “slippery slope”. No judge and no lawyer supporting the mandate has been able to answer the key question: “If this mandate is Constitutional under the Commerce Clause, what can government not do”? This is the amateur's understanding of the “slippery slope” concern:
In a very different 1995 case about guns, the government used the Commerce Clause to defend a law. Chief Justice William H. Rehnquist wrote that “we pause to consider the implications of the government’s arguments” in defending the law – that stopping activities that could lead to violent crime relates to interstate commerce because it affects “national productivity.” Under that reasoning, Chief Justice Rehnquist wrote, “It is difficult to perceive any limitation on federal power,” adding that “if we were to accept the government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”
The other side argues that slippery slope arguments are themselves slippery. Walter Dellinger, the acting solicitor general under President Bill Clinton, told the Senate Judiciary Committee, “If it is within the scope of regulating commerce to set a minimum wage … then Congress could set the minimum wage at $5,000 an hour.” But that would never happen, he said, for practical, political and legal reasons. Get it? He’s saying, “Trust us”.
The SCOTUS will absolutely be looking at consequences and so far, no advocate has been able to satisfy any judge about those – I think SCOTUS would scoff at Walter Dellinger’s arguments.
The last time the Obamacare law was upheld was Tuesday. A three-judge panel of the District of Columbia Circuit upheld the law but Judge Silberman, who wrote the majority opinion, suggested that the ruling meant that Congress could do anything at all. He said he remained troubled by “the government’s failure to advance any clear doctrinal principles limiting Congressional mandates that any American purchase any product or service in interstate commerce.” You can be absolutely certain that the SCOTUS will issue no such reasoning. In fact, proponents look at this decision as a potential Pyrrhic victory for the Obama Administration.
The case will now be heard in March and they’ll issue a decision before the election so we’ll learn a lot about the law and we’ll hear all sorts of stuff from the political side. For some of us at least, this will be really fascinating. If the mandate is struck down, Obamacare will almost certainly have to be repealed. The law is a house of cards and it cannot be implemented without the mandate and it can’t just sit there. Will the Court comment on that? How will this affect the election campaigns?
The political side will be interesting at another level too for the President. He is a Constitutional scholar and teacher. He takes a big risk if he claims the law is clearly Constitutional – no scholar is going to see it that way – and for most of the campaign he won’t know what the Court is going to decide. There will surely be arguments outside the Court about literalism and “what would the Founders do?” and the President will not want to be involved in those during the general election. The nation’s center is going to be put off by the lefty position on this subject and alarmed by the implications.
At the same time, the President cannot now come out and doubt any aspect of the law that is the center piece of his failed Administration. How can the Constitutional lawyer now say that the law he pushed so hard and then celebrated is Constitutionally flawed? I think we can be certain that his campaign guys wanted this to hit the SCOTUS after the election. We can be almost as sure that the Democrats “victory” Tuesday is a major factor in the SCOTUS decision to act now.
The Patient Protection and Affordable Care Act of 2010 is a terrible law passed in the most objectionable fashion conceivable. It is very likely a law that is Constitutionally flawed – what will that say about our government? Can you imagine Democrats allowing it to be repealed or working with Republicans to fix it? Can you see a way for that 3,000 page monstrosity to be implemented with a Constitutional flaw? But finally, what exactly are we going to do about the rapidly rising cost of healthcare?
