Monday, November 14, 2011

Obamacare Before the Court

I am a little nervous about Obamacare being decided by the courts before the election. The individual mandate is unconstitutional, there are some learned lawyers on my side. But I am troubled that this may be decided by the court for a number of reasons.

  1. It might go the wrong way, establishing a horrible precedent for decades. It would expand Congress' power under the interstate commerce clause beyond all recognition. Even breathing could be regulated.
  2. It might go the right way, but energize the Democratic base to push for a changed majority on the Court, giving Obama just enough support to get re-elected.
  3. It might go the right way, but only the individual mandate gets struck down and the Supremes give a pass on the whole severability issue. This would leave a very poorly written law mostly intact with its attendant drag on the economy, but take some of the air out of attempts to repeal.
  4. It takes the issue out of play for the November election. The eventual nominee will be able to hammer the President over the sausage making involved in this legislation.
  5. It takes the issue out of play for the November election. I believe issues of such national importance are best decided by the voters.

There is a possibility that the justices could put off a final ruling until after the election, but that seems unlikely.

Best outcome? From David Kopel.

The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”

Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.


  1. I guess if that happens we'll just have to enact the single payer system during the next majority, like so many progressives were pushing for, and which was abandoned to appease republicans/industry-purchased Democrats. Unless the Tea Party succeeds in getting the Court to repeal the 20th Century, the next health reform will be both more 'socialist' and more difficult to extirpate. Think of Medicare, but far more entrenched.

  2. Cali, thanks for being my only commenter of late. Too much to debate why I think single payer will bankrupt those countries who are trying it. Consider this. The best parts of the medical industry from both reports and personal experience are vision correction and cosmetic surgery. There are no waits, prices keep declining, and quality keeps improving. They also have in common that most consumers pay their own way with no insurance or government involvement. The free market is achieving the purported goals of government health care, declining price and increasing quality. Yet we seem loathe to try for more free market solutions with any other part of health care.