You’ve probably heard that another federal judge has ruled that the health care reform law is unconstitutional.
Of course, it’s a bit more complicated than that. Two Democrat-appointed judges have interpreted the law as constitutional, while two Republican-appointed judges have ruled the opposite. This is the perfect recipe for Supreme Court review, which now seems guaranteed. While it can be fun to try to predict the Will of the Nine, it’s perhaps more instructive to get back to the constitutionality issue and whether the administration and the former Democratic majority might have taken a different approach to reform.
One major caveat: I am neither a lawyer, nor a constitutional scholar. But I’m still right about everything, so there.
When people on the left of the political spectrum defend the mandate portion of the policy, they often bring up car insurance, which you’re obligated to purchase in the private marketplace. That is, if you *choose* to own a car, which is an important distinction. “Being alive” is not a matter of choice, at least not in the eyes of the law. A friendly note to progressives: do not make this a cornerstone of your argument, because your opposition has a ready-made (and shockingly fact-based!) counter.
Another argument you’ll hear is that, by the Florida and Virgina courts’ logic, Medicare and Social Security are unconstitutional. While it’s true that some conservatives believe this, further legal hair-splitting indicates a difference between the aforementioned entitlements and Obamacare. (We’ll get to that in a minute.)
In Florida, Judge Vinton struck down the entirety of the law (pending appeal) based on the fact that the element he found unconstitutional — the insurance mandate — is functionally inseparable from the rest of the statute. “There are simply too many moving parts … for me to try and dissect out … the able-to-stand-alone from the unable-to-stand alone,” he wrote in his opinion. (He also gave a sweet shout out to the Tea Party!)
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.
The health care law compels people to engage in commerce, which may or may not be considered a “tax to provide for the general welfare.” (We know what Vinton thinks.) Invoking the commerce clause as a means to strip away progressive policies is hardly a novel strategy; it was successfully done with a key component of the New Deal.
To summarize: it is judge Vinton’s view that the law would give the fed the power to regulate commerce by requiring individuals to purchase insurance from the private marketplace — something beyond the Constitutional powers of Congress. This is different than auto insurance, because of the whole “choosing to buy a car” thing. It is also different than Medicare, which states (and individuals) can opt out of. Lastly, it is different than Social Security, which is wholly government-run.
Kinda neat that the conservative argument against the health care law is predicated on the fact that it compels private market activity!
Another amazing thing to consider is that the thing that conservatives hate and fear the most — a single payer system run by the government — is likely more constitutionally sound, in that it falls under taxation for “general welfare” (one of the enumerated powers).
By putting forth a compromise bill, the Democratic Congress and the President may have doomed a key policy initiative to Supreme Court interpretation. The smart money is on a 5-4 SCOTUS decision. Which way that decision goes is anybody’s guess. If the constitutionality is upheld, there is no way in hell that the law can be successfully challenged going forward, and what looks today like incremental policy may become the cornerstone of a broad new entitlement. If it goes the other way, this type of hybrid market reform is deader than a doornail for at least several generations.
If I was the Obama DOJ, I’d be very nervous right now. (Maybe the Rational Basis Review would apply? What say you, lawyers?)
A subsequent generation of Americans may or may not conclude that “limited federal government” also has limited impact on the –gasp!– general welfare, and will call for further amendments to the Constitution. By then, we’ll be snug in our cryogenic chamber waiting to be reawakened when the country has a sane health care policy.
Or, America will simply end up a gun-toting, paranoid corporatocracy that keeps falling further behind the rest of the industrialized world. In which case, keep us frozen.