By Peter Ferrara
Barack Obama made a national laughingstock out of himself with his
recent comments on the Obamacare law now before the Supreme Court.
Obama said on Monday, “I’m confident that the Supreme Court will not
take what would be an unprecedented, extraordinary step of
overturning a law that was passed by a strong majority of a
democratically elected Congress.” (emphasis added).
President Obama is not stupid. But he thinks you are. He knows the
Obamacare health care takeover was not passed by a strong majority. But
he figures you’re so dumb he can rewrite recent history in plain sight.
The law passed a House with a huge Democrat majority at the time by
only 219-212. It did not get a single Republican vote, but the
opposition was bipartisan.
The law also barely squeaked past a Senate filibuster despite an
overwhelming 60 Senate Democrats, and even then humiliating buyoffs were
necessary. Public opposition was so strong that the ultraliberal
Democrat controlled Massachusetts, the only state to go for George
McGovern in 1972, elected a Republican in a special election for Sen.
Ted Kennedy’s seat, to terminate the Democrats’ filibuster-proof
majority. That required final passage of the law improperly in
violation of Congressional rules as a reconciliation measure, which is
only to be used to clean up the budget and so cannot be filibustered.
And given that Obama is so certain you can’t remember what happened
just two years ago, he is more than certain that you have never heard of
the ancient history of Marbury v. Madison, where the 14-year
old Supreme Court in 1803 took the then unprecedented step of
overturning a provision of law adopted by a strong majority of a
democratically elected Congress, in the Judiciary Act of 1789. That
case was where the Supreme Court first recognized its power of judicial
review, under which it is empowered to strike down laws found
unconstitutional. As the Wall Street Journal observed on Tuesday:
“In the 209 years since, the Supreme Court has invalidated part
or all of countless laws on grounds that they violated the Constitution.
All of these laws were passed by a ‘democratically elected’
legislature of some kind, either Congress or in one of the states. And
no doubt many of them were passed by ‘strong’ majorities….probably
stronger majorities than passed the Affordable Care Act.”
As a former constitutional law professor and President of the Harvard Law Review, Obama no doubt knows all about Marbury v. Madison
and judicial review. But he figures he can safely assume a majority of
you know nothing about it, and his party controlled media will not tell
you anything concerning it at this inopportune moment. Hence, another
classic example of what I have called Calculated Deception.
President Obama further assailed any Supreme Court decision ruling
his Obamacare health care takeover unconstitutional as “judicial
activism, or a lack of judicial restraint, that an unelected group of
people would somehow overturn a duly constituted and passed law.”
Alexander Hamilton disagreed over 200 years ago in Federalist 78,
writing, “There is no position which depends on clearer principles,
than that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid. . . .”
Or, as the Wall Street Journal explained on Monday:
“Judicial activism is not something that happens every time the
Supreme Court overturns a statute. The Justices owe deference to
Congress and the executive, but only to the extent that the political
branches stay within the boundaries of the Constitution. Improper
activism is when the Court itself strays beyond the founding document to
find new rights or enhance its own authority without proper
constitutional grounding.”
The Journal added, “Far from seeking an activist ruling, the
Obamacare plaintiffs aren’t asking the Court to overturn even a single
commerce clause precedent.”
In my role as General Counsel of the American Civil Rights Union, I
filed 3 amicus curiae briefs with the Supreme Court in the Obamacare
litigation. I also filed amicus briefs in the lower federal courts in
the cases in Virginia and Florida.
The reason that at least 5 Justices are going to find the law’s
individual mandate unconstitutional is that it is contrary to the
fundamental federalism architecture of the Constitution. Under the
Constitution, the federal government is an authority of limited,
enumerated, delegated powers. All other powers of government are
reserved for the states, including the broad authority labeled the
“police power.” That is the power to compel individuals to take
specific actions for the public good, such as actions for the public
health like vaccinations or quarantines, or obtaining car insurance, or
attending school. Notice that all such laws are adopted at the state or
local level. (Any federal laws compelling action are based on specific
delegated powers other than the Commerce Clause, like those providing
for national defense, or taxation).
The power to compel the purchase of health insurance for the public
good, as in Obamacare’s individual mandate, is a function of the police
power reserved to the states, and denied to the federal government by
the Constitution and Supreme Court precedents. If the federal
government is now to hold a national police power, then the
constitutional framework of federalism, with limited, enumerated powers
delegated to the federal government, and the remaining powers of
government retained by the states, would be obliterated.
That is why the Supreme Court held in United States v. Morrison,
529 U.S. 598 (2000), “We always have rejected readings of the Commerce
Clause and the scope of federal power that would permit Congress to
exercise a police power.” The Court added, “the principle that the
Constitution created a Federal Government of limited powers, while
reserving a generalized police power to the States, is deeply ingrained
in our constitutional history.” The Court explained in New York v. United States,
505 U.S. 144 (1992) that Congress may not exercise its enumerated
powers in a way that “infring[es] upon th[at] core of state
sovereignty.” The Court in Morrison rejected the argument that women
who are sexually assaulted would need medical care provides a sufficient
interstate commerce connection under the Commerce Clause.
As Justice Kennedy explained in United States v. Comstock,
130 S. Ct. 1949 (2010), “the precepts of federalism embodied in the
Constitution inform which powers are properly exercised by the National
Government in the first place.” The Court added in Gregory v. Ashcroft,
501 U.S. 452, 457 (1991), “[t]he Constitution created a Federal
Government of limited powers [and] withhold[s] from Congress a plenary
police power that would authorize enactment of every type of
legislation.”
The Obama Administration tried to shoe horn the individual mandate
into the federal enumerated power of the Commerce Clause, which grants
Congress the power to regulate interstate commerce. Their argument
boiled down to the claim that millions of people choosing to not buy
health insurance substantially affects interstate commerce. But every
economic decision, when aggregated across the whole market,
substantially affects interstate commerce in this way, including
decisions not to do something. So that would leave the Commerce Clause
eating up the whole Constitution and its most fundamental doctrine that
the federal government is an authority of limited, enumerated, delegated
powers. Federal power would then be without limit, contrary to the
whole concept of the federal government in the Constitution.
That is why the Court kept asking the government for a principle that
would limit its interpretation of the Commerce Clause, and its failure
to come up with one is fatal to the government’s case. All prior cases
under the Commerce Clause were based on the principle that some action
had been taken that the federal government could then regulate as
interstate commerce. To hold that inaction could be regulated as well
as itself substantially affecting interstate commerce would break
through any limitation on the power, and so was not what was intended.
That would also again tear down the Constitution’s fundamental
federalism architecture and any distinction between limited federal and
plenary state power.
That is why the Supreme Court in United States v. Lopez, 514
U.S. 549 (1995) rejected the notion of unlimited Commerce Clause power,
holding that it will strike down regulation under the Commerce Clause
which leaves no principled limit to federal power under the Clause. The
Court said, “the Constitution’s enumeration of powers does not
presuppose something not enumerated and that there will never be a
distinction between what is truly national and what is truly local.”
Justice Kennedy added, “[T]he federal balance is too essential a part of
our constitutional structure and plays too vital a role in securing
freedom for us to admit inability to intervene when one or another level
of Government has tipped the scales too far.”
Once the Court finds the individual mandate unconstitutional on these
grounds, as it will, the question becomes whether the whole Obamacare
Act must be struck down as unconstitutional as a result. The law does
not include a traditional severability clause providing that if one of
provision of the Act is found unconstitutional, the rest of the law
should stand.
Consequently, the question becomes whether the remaining parts of the
Obamacare law can still remain fully operative and function as Congress
intended, and whether Congress would have passed the Act without the
individual mandate. The answer in both cases is indisputably no.
Obama’s lawyers themselves have repeatedly argued in courts all over
the country that the Obamacare law cannot function without the
individual mandate. That is because of the Act’s regulatory
requirements for guaranteed issue and community rating. The Act
requires all insurers to cover all pre-existing conditions and issue
health insurance to everyone that applies, no matter how sick they are
when they first apply or how costly they may be to cover. Moreover, the
insurers can only charge them the same, standard, market rates as
everyone else.
Under these regulatory requirements, younger and healthier people
delay buying insurance, knowing they are guaranteed coverage at standard
rates after they become sick. Sick people show up applying for an
insurer’s health coverage for the first time with very costly illnesses
such as cancer and heart disease, which the insurer must then cover and
pay for, out of the same standard premiums as everyone else pays. This
means the insurer’s covered risk pool includes more costly sick people
and fewer less costly healthy people, so the costs per person covered
soar. The insurer then has to raise rates sharply for everyone just to
be sure to have enough money to pay all of the policy’s benefits.
Those higher rates encourage even more healthy people to drop their
insurance, leaving the remaining pool even sicker and more costly on
average, which requires even higher premiums, resulting in a financial
death spiral for the insurers and the insurance market.
If regulation required fire insurers to issue policies to people
whose houses were already on fire at standard rates, the fire insurance
pool would include only all burned down houses, which would obviously be
dysfunctional.
The Obamacare law tries to counter this problem by adopting the
individual and employer mandates, seeking to require everyone to be
covered and contributing to the pool at all times. Without these
mandates, the government itself has repeatedly argued, those who would
remain uninsured would substantially affect the interstate market for
health insurance, by allowing the remaining regulatory requirements to
cause soaring health insurance premiums through the above process and
ultimately a financial death spiral.
That financial death spiral would cause the costs of other provisions
of Obamacare to soar, such as the subsidies for purchase of health
insurance on the Exchanges, which would be even more costly than
expected, and the costs for the Medicaid expansion, where more people
would qualify given the decline of private insurance.
Indeed, Obamacare itself in its very statutory language recognized
the essential role of the individual mandate in the statute’s overall
framework, saying in Section 1501(a)(2)(I):
“[I]f there were no [individual mandate], many individuals would
wait to purchase health insurance until they needed care….The
[individual mandate] is essential to creating effective health insurance
markets in which improved health insurance products that are guaranteed
issue and do not exclude coverage of pre-existing conditions can be
sold.”
As the court said in Alaska Airlines v. Brock, 480 U.S. 678
(1987), “Congress could not have intended a constitutionally flawed
provision to be severed from the remainder of the statute if the balance
of the legislation is incapable of functioning independently….”
Moreover, the Court also recognized that in the absence of a statutory
severance clause the entire statute must be struck down if Congress
would not have enacted the statute without the unconstitutional
provision.
Consequently, the loss of the individual mandate so centrally affects
the entire structure of the Act that without it the entire structure
must fall. Trying to determine what could be salvaged would embroil the
Court in rewriting the statutory policy and framework to govern
one-sixth of the entire U.S. economy, which is obviously not a judicial
function.
The only other foreseeable outcome is for the liberals on the Court
to agree to go along with a ruling declaring the mandate
unconstitutional if the Court will just decide to hold back on deciding
severability to give Congress the chance to figure out how it wants to
fix it. But Congress could just pass a whole new law in any event if
the Court just strikes down the whole thing, which based on its
precedents is exactly what it should do.
But liberals should not despair. There is broad bipartisan agreement
on alternative means of covering the uninsured with a health care
safety net, which would not be expensive if done right, and addressing
health costs through market competition and incentives, which altogether
could well actually reduce federal spending sharply. The end result
would be a much better bill that satisfies all desirable social goals.
But that would still require a different President, because Obama’s
anti-market, left wing, ideology would not allow him to accept that
desirable result.
Related Reading:
Obamacare: Do Not Resuscitate
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Americans Want More Control Over Their Own Health Care
NPR: "Repeal Obamacare" Is Code For "White People Want Black People Hanging From Trees" Or Something
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