"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."-- James Madison, the Father of the United States Constitution
Posted on 03/27/2012 7:44:07 AM PDT by Servant of the Cross
And now, for the main event.
Today, the Court tackles the individual mandate, and whether Congress has taken a step too far by enacting it. The question is basic: Is the individual mandate constitutional? The consequences are heady. Whichever way the Court decides will have a critical effect on the scope of Congress’ power – and possibly, our freedom.
What’s At Stake?
The individual mandate – or, as the federal government will call it, the “minimum coverage provision” – has been under fire ever since the inception of the Patient Protection and Affordable Care Act, in 2009. The political Left argues that a mandate is absolutely necessary in order to address our country’s dire healthcare situation: poor “free riders” seeking and receiving care under the Emergency Medical Treatment and Active Labor Act, which in turn drives up both taxes and the cost of insurance premiums. Besides, they argue, healthcare is a necessity, which everyone will need, and thus ought to have. The mandate simply prods the uninsured to do what’s best, both for themselves and in turn, the country at large. The Right, on the other hand, opposes the mandate on the grounds that it’s a total violation of freedom, that it will not succeed in reducing the overall cost of insurance, and what’s more, that down the line, it will result in socialized, government-sponsored healthcare programs rife with rationing and lines for doctors.
Of course, the Court isn’t supposed to address the political concerns attached to the healthcare issue (nevemind the speculation that it does). Instead, its main concern is determining whether Congress has overstepped its bounds, and does the Court need to check that power?
When Congress passed the PPACA, it justified the individual mandate using the Commerce Clause, which reads, “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” It’s one of the most frequently exercised powers, the cornerstone of hundreds bills passing through Congress each year. In this case, Congress has classified the decision to remain uninsured as one which “substantially affects” interstate commerce, and thus subject to regulation under the commerce clause.
The Court’s job, then, is to rule on whether abstention from the market constitutes “regulatable” behavior. If the Justices find the mandate constitutional, then it will grant Congress the power to compel an individual to participate in the market. Critics argue that such a ruling would allow Congress to exert control over an individual in an unprecedented and dangerous way, one that could degenerate into a slippery slope of increasingly tyrannical regulation. Proponents say that such fears are hyperbolic; healthcare is unique, and the mandate is necessary to stabilize healthcare, and ultimately, the economy.
Solicitor General Donald Verrilli will represent the Obama administration, arguing for constitutionality. Paul Clement will represent the states, arguing that it’s not, while Michael Carvin will represent the National Federation of Independent Business, augmenting the unconstitutionality argument.
Affirmative: The Mandate Is Constitutional
The Solicitor General will argue that the interstate commerce clause grants Congress the power to compel health insurance purchases, owing to the immediate effect that remaining uninsured has on the economy. Under this logic, there is no distinction between commercial “activity” and “inactivity.” The choice to be inactive has consequences far beyond simply not owning health insurance.
Giving legs to this argument is the claim that “free riders” in the healthcare system – such as the uninsured who seek emergency medical treatment under EMTALA – shift $43 billion per year to the rest of the country. The uninsured, the government contends, generate higher taxes to cover the cost of their care, and in turn, drive up individual family insurance premiums. The supposed “inactivity” of owning health insurance, therefore, is a decision that affects the nation at large, and causes the federal government enough of a financial burden that it has the right to regulate it.
The government will apply precedent set in Wickard v. Filburn, a case decided in the New Deal era that significantly broadened the government’s powers under the commerce clause. Roscoe Filburn was a wheat farmer, whose farm exceeded a production quota set by the government during the Great Depression. He contended that the extra wheat was intended for his own private consumption, and not for commercial purposes; therefore, the government had no right to regulate it. However, the Court held that his own private wheat stash precluded his own participation in the commercial market, thereby “substantially affecting” interstate commerce. He was in violation of the law, and Congress was well within its Commerce Clause rights to regulate his private wheat consumption.
Using this logic, the private decisions one citizen makes can have enough of an impact on the economy at large that Congress may regulate those decisions. The government will argue that healthcare is one such case in which an individual’s decision has a substantial and indeed, detrimental effect on the economy. Congress, then, has the right to regulate that decision.
While the Commerce Clause is the primary justification for the mandate, the government will also rely on the Necessary and Proper clause, which says that Congress may “make all laws which shall be necessary and proper for carrying into execution the foregoing powers…” This argument will rely on the theory that the Constitution must adjust to the times. Back in the Framers’ day, healthcare meant apothecaries, bloodletting, and wooden teeth; these days, it comprises 20% of our national economy. The Necessary and Proper clause is vague and broad intentionally so as to allow Congress to address problems in the national interest as they arise. The mandate is a “necessary and proper” solution to one such national problem, they say. It ought to stand.
Negative: The Mandate Is Not Constitutional
Not so fast, the states and private parties will say. Congress can’t just seize this broad, unlimited power for the sake of “the national interest,” while assuring us all that healthcare is “special.” Who’s to say something else won’t be special someday? No, there must be a limit to Congress’ power, and the buck stops here.
Randy Barnett, a professor at Georgetown University Law Center and occasional advocate in the Supreme Court, laid out a concise case against the mandate during a talk at the Cato Institute last week. He gave four reasons for the mandate’s unconstitutionality, the model off which Mr. Clement and Mr. Carvin will work.
1) Unprecedented: Congress has never tried to claim this power before, the power to force individuals into business contracts. Nowhere does any document grant Congress the power to do so, and while that doesn’t automatically make it unconstitutional, Justice Scalia has written a most prescient opinion on this matter. He says, “If for 200 years a power this attractive has gone unused by Congress, that’s a pretty good argument that the power does not exist.” One such argument is this: instead of pumping millions of tax dollars into GM, why didn’t the government instead force us all to save the auto industry by purchasing cars or stock in the company? How different, then, is the mandate?
2) Uncabined: This is law-speak for unlimited. Interestingly, the government hasn’t been able to name a single limiting principle to this power when it’s been put on the spot. Who’s to say they can’t force us to buy other things? If Congress decides it’s in the national economic and environmental interest for all of us to drive Chevy Volts, can it issue a mandate to that end? The defense against this point is, of course, that healthcare is "different," since everyone in his or her lifetime will require some such service. But the fact that healthcare is an apparent exception to the rule doesn’t mean the mandate power has a constitutional limit. The Court may not consider a factual inquiry such as this, but it’s worth noting that the power has no visible constitutional check.
Indeed, this particular quote from the state's brief illustrates the problem with the "aggregated" or "substantially effects" theory the federal government relies on: "The federal government argues that the decision NOT to purchase health insurance has, in the aggregate, a substantial effect on the national economy, and therefore interstate commerce. However, the Court of Appeals struck down this premise: 'The court found that theory ‘limitless,’ observing that, ‘[g]iven the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect the interstate commerce.'"
3) Unnecessary: Congress didn’t seek every recourse besides a mandate to solve the national healthcare crisis; for example they could have raised taxes for the purpose of putting the funds toward the supposed $43 billion spent on indigent healthcare. Raising taxes, however, is politically unpopular (and for the record, it’s speculated that’s why Congress didn't call the mandate penalty a "tax"). This argument basically says that Congress should try other means of solving the problem without exercising constitutionally questionable power.
4) Dangerous: This is an extension of the unlimited argument. Basically, choosing to enact a mandate, enforced by a penalty, could quickly spin out of control. When Congress incentivizes behavior (the primary example being Cash for Clunkers), the only consequence is foregoing a benefit, financial or otherwise. When Congress says, "Do this or else," and means it punitively, the "or else" could eventually become a more serious consequence, such as prison. If, down the line, Congress finds that the financial penalty isn’t sufficient to induce a certain behavior (i.e. purchasing health insurance), who’s to say they won’t start jailing violators?
How Will They Rule?
This is the question of the hour. And it really is hard to say – there are precedents attached to several judges that seem to indicate they may rule either way. The most likely scenario is that the decision will be 5-4, with Justice Kennedy, as he often is, serving as the swing vote. Ultimately, the Justices will have to weigh compelling national interest against the potential for abuse of power. Tomorrow, we’ll see which points they push the most, and try to determine what factors will influence their final decision.
The “free riders” are exactly why the entire Obamacare package should be null and void if the individual mandate fails. The entire program was set up with the intent to force participation in order to cost share by bringing uninsured, healthy young people into it. If they don’t need to participate, then it all falls. Justices have no right to pick and choose unless the bill contains a severability clause (I’ve read it doesn’t). It either all stands, or it all falls. Shoot, if the SCOTUS was following the law, they’d overturn Wickard v. Filburn while they are at it. What a travesty!
Very good article..well written. The Constitution dictates they strike down Obamacare, but we know liberals on the court will vote in lockstep while the conservatives look to the Constitution..Kennedy will stick a finger in the air.
1. Yes, the consequences are heady.
2. Yes, whichever way the Court decides will have a critical effect on the scope of Congress' power.
3. " - and possibly, our freedom." WHAT!? There IS no possibly - the very ESSENCE of this case IS our freedom. This case is about nothing more and nothing less than our freedom. Period. Stop. Do not pass Go. End of story.
I told my kids this morning that this case is the most important Supreme Court decision in history - if the federal government wins, it will then be able to force you to buy ANYTHING. That includes membership in a gym, a device (that you MUST wear) which proves that you actually exercised, specific foods (from, of course, specifically-named providers), specific brands of medication (both prescription and OTC), specific books (which just "might" have a particular point of view) and tests to make sure that you actually read the books, cars (GM, anyone?), etc., etc., etc., ad infinitem. There will literally be no limits on the the power of the government, and our liberty will become a fast-receding memory.
If the Supremes don't rule that the Obamacare mandate is unconstitutional, the USA is over. If that happens, I would expect, over the next several years, scores to hundreds of thousands (at least) to be imprisoned for failure to obtain insurance and failure to pay the penalty for that to the IRS. I would further expect that some of those people will not go quietly to jail - so, ironically, a law supposedly meant to improve health will directly cause deaths among both the civilian population and government employees. Frankly, I HOPE that it does - it'll be evidence that the spirit of liberty hasn't yet died.
Ironically, I don't need a law to tell me that it makes sense to have medical insurance - I already have it without any mandate, as does 90% of the population. But I resent the Hell out of being told what I MUST do, under penalty of fines and imprisonment - just like seatbelts (which I wear out of my own sense of what is wise to do, not because a bunch of control-freaks in the legislature decided for me what is in my own best interest). What ticks me off to no end is that when I ride the 2/10 of a mile down my quiet street from my mailbox to my driveway without a seatbelt, if caught by a public servant uniformed highwayman I can be fined - simply outrageous! Similarly, if I chose to ride a motorcycle (which I won't - I think it too risky), I would wear a helmet - but would resent the Hell out of being required to do so. I cannot walk around with more than $10,000 of cash (which I think is generally a foolhardy thing to do) without worrying about being arrested for being a drug dealer and having my money seized by those uniformed highwaymen. The whole concept of liberty is that I - and every other adult in our society - get to do whatever I want to do, just so long as it doesn't directly diminish the rights of others. For some reason, that very simple concept seems to bother the crap out of the lieberal fascists among us. Well, phuck'em!
This law is the culmination of all of the progressive feel-good legislation (virtually all of which is either blatantly unconstitutional or incredibly contrary to the intent of the Founders) that we've been subjected to for literally the last 100 years. It pretty much started with the Federal Reserve, moved to the income tax, federal gun control (several iterations), most of the New Deal programs (many passed after FDR threatened the Supreme Court into irrelevance with his Court-packing scheme), the "War on (Some) Drugs" and lately the "War on Terror (and ornery Constitution "freaks" who have the gaul to think that they actually have rights)."
Let us hope and pray that the Supremes have the sense and the decency, to say nothing of the intellectual integrity, to repeal this abomination. If not, the Republic is over...and long live the Rebellion!
Interesting, EMTALA forces hospitals to treat people regardless of their ability to pay..that’s been federal law for many years, but is it constitutional? Why not scrap EMTALA or make changes?
"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."-- James Madison, the Father of the United States Constitution
Good thing to hear.
I would like to know how it is Constitutional for the federal government to prohibit new physician owned hospital, and to pay twice as much money for the same test if done in a hospital vs. a physicians office. This, as much as anything else, has forced private practices to close and for physicians to become employees of large hospital corporations - where they have less decision making autonomy and can be more centrally ‘controlled’.
This presumes that those who do not carry insurance also do not pay their bills. I shelled out $11,000+ last year for doctor visits, orthodontist's fees, etc.
It would have been about the same I would have had to pay for a health insurance program, but last year was the most expensive one in decades.
Many uninsured patients make arrangements to pay their bill if they can't plunk down the cash, or pay by credit card.
The government is not trying to require health CARE, but INSURANCE, and Muslims get a pass because they don't like gambling, while Catholics don't because they just see killing an embryo as murder...
Hasn't this question already been answered in the affirmative?
Social Security.
How could it possibly be constitutional to force a private entity to give property to another private entity? What does that have to do with regulating commerce between the states? Answer: nothing. Aside from the authority to collect income taxes, doesn’t the constitution say private property can only be taken for public use if fair compensation is paid? Note that public use doesn’t mean public purpose, meaning anything a politician wants. Even if the federal government had the right to force one to render care, the federal government would clearly be required to pay all of the legitimate expenses involved. Does EMTALA do that?
oops. I did do a title search using “day two: is the” and nothing came up. I just did it again and neither thread comes up.
Without being unnecessarily explicit, I believe the objective is to force the melanin impaired folks to pick up the tab, effectively making fiscal slaves of them. Some sort of twisted payback for a distorted view of history, taught at our expense.
It's time to kick this bunch of charlatans out of office, close the border, evict the illegals, and get our house in order. November seems a long way away...
That’s not really constitutional, because FDR sought to pack the court with political allies and one justice became a Souter. Anyhow, the basis was the General Welfare Clause, a summary of the enumerated powers. Read Federalist 43. The anti-federalists argued against the Constitution on the basis that the General Welfare Clause amounted to unlimited power, but Madison called it a misconstruction..it was a summary and why enumerate particular powers..that was his point. Ironically, the Court and Collectivists argue that it is an unlimited power.
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