The Supreme Court’s decision to hear arguments in the 26-state challenge to Obamacare sets the stage for the most important constitutional test of freedom and individual liberty in at least a generation.
The court will hear arguments next spring in the case brought by Florida, 25 other states, and the National Federation of Independent Business — the highest-profile challenge to the health-overhaul law.
The justices will allow a remarkable four and a half hours of oral argument to discuss at least four issues: the individual mandate, the law’s requirement that states expand Medicaid coverage, whether federal tax law, under the Anti-Injunction Act, keeps the court from reviewing of the mandate until someone has paid a penalty in 2015, and severability, i.e., and what provisions of the law should be struck if the mandate is found to be unconstitutional.
The core of the case is the constitutionality of the “individual mandate” — the federal requirement that all citizens must have government-prescribed health insurance. The Eleventh Circuit Court of Appeals ruled against the mandate in the Florida case in August, saying that if Congress can require “that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die,” then there will be “no limiting principles in which to confine Congress’s enumerated power.”
The Obama administration has insisted in its arguments that the mandate is the heart and soul of the health-overhaul law, its lawyers saying at least 14 times in lower court arguments last year that the mandate was an “essential” part of the act and its reforms cannot survive without it. The act itself says, “If 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 insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”
“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” U.S. District Judge Roger Vinson concluded. The Eleventh Circuit Court of Appeals, unwilling to go as far as Vinson, struck the mandate down but let the rest of the law stand.
The Obama administration decided to build in a protection and, in its appeal to the Supreme Court, asked that if it strikes the mandate, it also strike the guaranteed-issue and community-rating provisions in the law.
But the mandate is crumbling and will fall either to the courts, to Congress, or functionally as the American people reject it. It is emblematic of the inevitable collapse of the whole law.
There is a consistent theme among those who have concluded that the individual mandate is constitutional. In his Eleventh Circuit dissent, Judge Stanley Marcus repeatedly says that health care is uniquely important, that everyone will need it, and that it is therefore within the purview of Congress to regulate this form of commerce. That was the basic argument in the disappointing D.C. Circuit Court of Appeals decision last week, led by Judge Laurence Silberman. But the majority in the Eleventh Circuit disagreed, saying, “It simply will not suffice to say that, because Congress has regulated broadly in a field, it may regulate in any fashion it pleases.”
The Eleventh Circuit said it could find no precedent for a mandate on individuals to purchase government-approved health insurance:
Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products . . . [But even] in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.
The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.
The real question in all of these decisions is whether or not the U.S. Supreme Court will use this case to finally put the brakes on the expansive use of the Commerce Clause to regulate all forms of commerce and our behavior as we engage in that commerce.
As with so many other issues in this historic debate, it ultimately all comes down to freedom — and whether it will be lost or preserved by the Supreme Court and the voters next year.
Posted on National Review Online: Critical Condition, Nov. 14, 2011.