In just a few hours the Supreme Court will begin to hear oral arguments on Obamacare – likely one of the most consequential cases of our lifetimes. The outcome could literally decide the limits (or lack thereof) of the federal government’s power.
While conservatives are honestly pondering the constitutional challenges that the law is likely to face, liberals are exuding a cocky confidence over their chances.
Take this article from New York Times columnist Linda Greenhouse:
“Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. . . The constitutional challenge to the law’s requirement for people to buy health insurance . . . is rhetorically powerful but analytically so weak that it dissolves. . .”
Or this one from Slate’s Dahlia Lithwick:
“[The decision] has almost nothing to do with the law and everything to do with optics, politics, and public opinion. . . The real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama [sic] of one of his signature accomplishments.”
For her part, Rep. Nancy Pelosi has largely followed suit. When asked where the Constitution grants Congress the authority to enact an individual health insurance mandate Pelosi responded with disdain. “Are you serious?” she asked.
But as Reason’s Peter Suderman so aptly puts it, “derision does not amount too much of an argument either.” Yet, that has been liberal’s main line of attack. Rather than engage in a reasoned debate over the law’s constitutionality liberals have simply demurred. But in their overeagerness to brush aside arguments over the legality of the individual mandate is perhaps the best evidence of the weakness of their own case.
This is not as slam-dunk as liberals would have you believe. Constitutional scholars are certainly divided. Majorities of every ideological group (yes, Democrats included) believe that the law is unconstitutional. And even appellate courts (with some judges appointed by Clinton) have struck down either the law in its entirety or the individual mandate in particular.
So at the very least we can say that there is honest disagreement about the law’s future before the Supreme Court.
And there’s good reason for disagreement. The broadest power the Obama Administration could use to justify the use of the individual mandate is under its authority to “lay and collect taxes.” And yet Obama has gone to great links to argue, at least in the court of public opinion, that the mandate is not a tax. Even if the Administration changes position and argues it’s a tax, Duke law professor Stephen Sachs says that’s not the end of the argument.
“The line between taxes and commands backed with civil penalties is blurry, but it still exists, and courts enforce it,” Sachs argues. “Speeding tickets may raise revenue, but they’re not taxes. And even if Congress can tax speeding, that doesn’t mean it can write a nationwide code of moving violations.”
The Commerce Clause, the legal justification that has thus far received the most attention, is a similarly questionable argument. The individual mandate punishes people for not buying insurance; should not buying something be classified as “economic activity” and thus fall under the Commerce Clause’s purview? It is a legitimate question. Moreover, if the court decides that it is constitutional, will they be able to identify a limiting principle that would prevent the federal government from being able to regulate anything? Courts that have struck down the individual mandate have been unable to.
Finally, there is the Necessary and Proper Clause, which allows Congress to “make all Laws which shall be necessary and proper for carrying into Execution” other federal powers. But even if the Obama Administration believes it is necessary, it is far from clear that it is proper. As Ilya Somin argues in an amicus brief the mandate runs afoul of the requirements for propriety in multiple ways. Namely, it would grant the federal government unlimited power, would rend other Constitutional powers redundant, and violates three of the five criteria laid out in the case U.S. v. Comstock.
Although we’ll soon see how the Supreme Court decides each of these arguments, Democrats should at least recognize the need to take off their partisan blinders and lay their derision aside. These are important constitutional arguments and Americans deserve a better debate.